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KATZ, KYLLO, AND TECHNOLOGY:
VIRTUAL FOURTH AMENDMENT
PROTECTION IN THE TWENTY-FIRST
CENTURY
Tracey Maclin *
INTRODUCTION
The freedoms established in the Bill of
Rights—including the Fourth Amendment right to be free
from unreasonable governmental searches and
seizures—were meant to endure. Advances in science and
technology recurrently exert pressure on the scope and
meaning of the Fourth Amendment, 1 but the privacy and
security protected by the Fourth Amendment should not
depend on innovations in technology. “When the American
Republic was founded, the framers established a libertarian
equilibrium among the competing values of privacy,
disclosure, and surveillance. This balance was based on the
technological realities of eighteenth-century life.”2 During
* Professor of Law, Boston University School of Law. I want to thank Tom
Clancy for inviting me to speak at the University of Mississippi School of Law
and to attend a symposium entitled, The Effect of Technology on Fourth
Amendment Analysis and Individual Rights. I also want to thank the National
Center for Justice and the Rule of Law at the University of Mississippi School of
Law that is supported by a grant from the Bureau of Justice Assistance, Office
of Justice Programs, of the U.S. Department of Justice, for its generous support
of this article. Finally, I thank Jill Marr for her research assistance.
1
As Justice Scalia notes: “It would be foolish to contend that the degree of
privacy secured to citizens by the Fourth Amendment has been entirely
unaffected by the advance of technology.” Kyllo v. United States, 533 U.S. 27,
33-34 (2001); see also Raymond Shin Ray Ku, The Founders' Privacy: The
Fourth Amendment and the Power of Technological Surveillance, 86 MINN. L.
REV. 1325, 1344 (2002) (arguing that “[f]rom the beginning, the Supreme Court
has taken a narrow view of the Fourth Amendment's role in limiting
government discretion to employ novel technologies”); Thomas K. Clancy, What
Does The Fourth Amendment Protect: Property, Privacy, or Security, 33 WAKE
F OREST L. REV. 307, 335 (1998) (noting that the “overall tendency of the Court
has been to contract the protected individual interest as a consequence of
modern technological advances and their utilization by the government”).
2
ALAN F. WESTIN , P RIVACY AND F REEDOM 67 (1967).
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the Framers' era, the home was the focal point of privacy and
personal security. 3 The Fourth Amendment proscribed
intrusions into a home unless a government official obtained
a judicial warrant supported by specific procedural
safeguards. 4
With the increased use of technology in the twentieth
century, the Supreme Court confronted search and seizure
questions never imagined by the Framers. During the firsthalf of the twentieth century, Fourth Amendment liberties
typically fared poorly under the pressure of a technologically
advancing society. For example, police investigative methods
adapted to deal with the mobility of cars when automobile
travel became accessible to many people. In 1925, the Court
ruled a warrantless search of a car and its contents is
reasonable, provided there is probable cause to believe that
the vehicle contains contraband. 5 Three years later, the
Court ruled the Fourth Amendment did not encompass
police wiretapping of telephone conversations. The Court
explained wiretapping involves neither a search nor seizure
within the meaning of the Amendment, 6 and that “one who
installs in his house a telephone instrument with connecting
wires intends to project his voice to those quite outside, and
that the wires beyond his house and messages while passing
over them are not within the protection of the [Fourth]
Amendment.”7 By the 1950's, pressure mounted, on and off
the Court, to reconsider whether the Amendment's
protective scope excluded wiretapping. Notwithstanding the
criticism of its wiretapping ruling, in 1952 the Court held
that use of a “wired spy” to capture the conversations of the
defendant and a government informant who surreptitiously
recorded them did not trigger Fourth Amendment
protection.8 The Court, however, scoffed at the notion that
police use of a wired informant is akin to police
3
(1967).
See, e.g., DAVID H. F LAHERTY , P RIVACY
IN
COLONIAL NEW ENGLAND 45
See Thomas Y. Davies, Recovering the Original Fourth Amendment, 98
MICH. L. REV. 547, 551 (1999) (“The historical statements about search and
seizure focused on condemning general warrants. In fact, the historical concerns
were almost exclusively about the need to ban house searches under general
warrants.”).
5
Carroll v. United States, 267 U.S. 132, 149 (1925).
6 Olmstead v. United States, 277 U.S. 438, 464 (1928). Olmstead explained
that the Fourth Amendment does not forbid wiretapping. “There was no
searching. There was no seizure. The evidence was secured by the use of the
sense of hearing and that only. There was no entry of the houses or offices of
the defendants.” Olmstead, 277 U.S. at 464.
7
Id. at 466.
8 On Lee v. United States, 343 U.S. 747, 751 (1952).
4
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wiretapping.9
Although the Court gave the police wide discretion to
u tilize technology to investigate individuals during the first
half of the twentieth century,10 the Court transformed its
analytical approach toward electronic surveillance in the
mid-1960's. First, the Court rejected its earlier conclusion
that oral communications were not covered by the Fourth
Amendment. 11 The Court then decided three cases which
demonstrated a dramatic shift in the Justices' thoughts about
electronic surveillance methods. Having previously
determined that law enforcement officials could freely use
wiretapping and wired informants without constitutional
restraint, by 1967 the Court reversed course and ruled that
judicial approval was a pre-condition to validate electronic
surveillance.
In the first case, Osborn v. United States,12 the Court
approved a judicial order authorizing a tape recording of an
attorney's conversation with a government informant. A
detailed affidavit alleged that the attorney attempted to
bribe a juror.13 The Osborn Court specifically noted that the
challenged electronic surveillance involved police
9
On Lee, 343 U.S. at 754. The On Lee Court asserted: “It would be a
dubious service to the genuine liberties protected by the Fourth Amendment to
make them bedfellows with spurious liberties improvised by farfetched analogies
which would liken eavesdropping on a conversation, with the connivance of one
of the parties, to an unreasonable search or seizure.” Id.
10 In cases where electronic surveillance constituted a physical trespass or
entry into a constitutionally protected area, Fourth Amendment safeguards were
imposed. Compare Silverman v. United States, 365 U.S. 505, 510-12 (1961) (use
of a “spike mike”–which is a device that made contact with a heating duct
serving the house occupied by the defendants–was “an unauthorized physical
penetration” of the premises, and thus a search under the Fourth Amendment),
with Goldman v. United States, 316 U.S. 129, 135 (1942) (use of a
detectaphone—which captures sound waves–placed against the wall of an office
in order to overhear conversations in an adjoining office was no search because
there was no physical trespass of the targeted office).
11
Olmstead concluded that oral communications were not protected by the
Fourth Amendment. Olmstead, 277 U.S. at 464. This conclusion was later
rejected in Silverman, 365 U.S. at 511 (finding a Fourth Amendment violation
because “the officers overheard the petitioners' conversations only by usurping
part of the petitioners' house or office” without judicial authorization) and Wong
Sun v. United States, 371 U.S. 471, 485 (1963) (explaining that Silverman
recognizes that “the Fourth Amendment may protect against the overhearing of
verbal statements as well as against the more traditional seizure of `papers and
effects.'”). Cf. United States v. White, 401 U.S. 745, 775 (1971) (Harlan, J.,
dissenting) (noting that Wong Sun “expressly brought verbal communications
within the sweep of the Fourth Amendment”).
12 385 U.S. 323 (1966).
13
Osborn, 385 U.S. at 328.
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monitoring “under the most precise and discriminate
circumstances.”14 Osborn was an unusual case because
government agents had sought judicial approval before
undertaking electronic monitoring. Thus, Osborn was an
unlikely precedent to affect major change in the way law
enforcement officials conducted electronic surveillance. The
discerning reader, however, would recognize that Osborn
signaled the Justices' discomfort with previous rulings
upholding electronic surveillance.15
While Osborn may not have caught the attention of law
enforcement officials, a second case, Berger v. New York,16
was a bombshell for the police. Berger invalidated New
York's electronic surveillance statute. The Court found that
the electronic surveillance that the statute authorized
contained numerous constitutional flaws. 17 Beyond the
specific constitutional objections that the majority listed,
some of the Berger Court's harsh language condemning the
New York statute “left the dissenting Justices (and many
others) wondering whether any wiretapping or electronic
Id. at 329.
Prior to Osborn, in Lopez v. United States, 373 U.S. 427 (1963), the Court
upheld the admission of testimony of an Internal Revenue agent's conversation
with a defendant who had tried to bribe the agent and a tape recording of that
conversation that was captured by a pocket recorder worn by the agent. Lopez,
373 U.S. at 440. The Lopez Court ruled that no unconstitutional invasion of
Lopez's office occurred because the agent had the defendant's “consent, and
while there [the agent] did not violate the privacy of the office by seizing
something surreptitiously without petitioner's knowledge.” Id. at 438. Four
members of the Lopez Court wanted to overrule On Lee. See id. at 441-43
(Warren, C.J., concurring) (arguing that On Lee should be overruled, but
distinguishing facts in Lopez from On Lee because the use and purpose of the
electronic recording equipment in On Lee “was not to corroborate the testimony
of the [government informant], but rather, to obviate the need to put him on
the stand”); see id. at 446-53 (Brennan, J., dissenting) (arguing that On Lee and
Lopez are indistinguishable). The Osborn majority avoided the debate that was
left unsettled in Lopez “because it is evident that the circumstances under which
the tape recording was obtained in this case fall within the narrower compass of
the Lopez concurring and dissenting opinions.” Osborn, 385 U.S. at 327.
16 388 U.S. 41 (1967).
17
Berger, 388 U.S. at 56, 58-59. Berger explained that the statute was
unconstitutional because first, “[i]t lays down no requirement for particularity in
the warrant as to what specific crime has been or is being committed, nor `the
place to be searched,' or `the persons or things to be seized' as specifically
required by the Fourth Amendment.” Id. at 56; see also id. at 58-59. Second, the
statute authorized surveillance “for a two-month period [which] is the equivalent
of a series of intrusions, searches and seizures pursuant to a single showing of
probable cause” and permitted extensions of surveillance on “a mere showing
that such extension is `in the public interest.'” Id. at 59. Third, the statute
“places no termination date on the eavesdrop once the conversation sought is
seized. This is left entirely in the discretion of the officer.” Id. at 59-60. Finally,
the statute did not require prompt return on the warrant “thereby leaving full
discretion in the officer as to the use of seized conversations of innocent as well
as guilty parties.” Id. at 60.
14
15
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eavesdropping statute could pass constitutional muster.”18
Finally, Katz v. United States,19 decided a year after
Osborn , eliminated any lingering uncertainty about the
constitutional validity of unchecked police wiretapping. Katz
held that FBI agents violated the Fourth Amendment when,
without judicial authorization, they attached an electronic
listening and recording device to the outside of a public
telephone booth that the defendant used. 20 Katz was a
landmark case.21 The ruling not only solidified the Court's
view that the Constitution required judicial supervision of
electronic surveillance, it also “purported to clean house on
outmoded [F]ourth [A]mendment principles.”22 Moreover, in
the view of many, the impact of Katz was “to expand rather
than generally to reconstruct the boundaries of [F]ourth
[A]mendment protection.”23 Put simply, the holding and logic
of Katz was revolutionary. Katz moved the Court “toward a
redefinition of the scope of the [F]ourth [A]mendment.”24 The
passage of time, however, would show that Katz would do
little to protect Fourth Amendment liberties.
The technological advances of the twenty-first century
will present new, and sometimes more challenging, issues as
judges grapple with the question of how much privacy and
security the Fourth Amendment provides. 25 At the start of
18 YALE K AMISAR ET AL., BASIC CRIMINAL P ROCEDURE: CASES, COMMENTS AND
QUESTIONS 352-53 (10th ed. 2002).
19 389 U.S. 347 (1967).
20
Katz, 389 U.S. at 359.
21 See 1 W AYNE R. L A F AVE , SEARCH AND SEIZURE § 2.1(b), at 385 (3d ed. 1996).
22
Note, From Private Places to Personal Privacy: A Post-Katz Study of
Fourth Amendment Protection, 43 N.Y.U. L. REV. 968, 975 (1968).
23
Anthony Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L.
REV. 349, 385 (1974).
24
Edmund W. Kitch, Katz v. United States: The Limits of the Fourth
Amendment, 1968 SUP. CT. REV. 133, 133; see also Stephen A. Saltzburg,
Another Victim of Illegal Narcotics: The Fourth Amendment (As Illustrated by
the Open Fields Doctrine) 48 P ITT. L. REV. 1, 11-12 (1986) (explaining how Katz
tends to redefine the scope of the Fourth Amendment); Albert W. Alschuler,
Interpersonal Privacy and the Fourth Amendment, 4 N. ILL. U. L. REV. 1, 6 n.12
(1983) (explaining how Katz ties the right to privacy to “changing cultural
expectations” of privacy). Cf. David A. Sklansky, Back To The Future: Kyllo,
Katz, and Common Law, 72 MISS. L.J. 143, 145 (2002) (describing Katz as
“perhaps the most influential search-and-seizure decision of the past halfcentury”).
25
Cf. Susan Bandes, Power, Privacy and Thermal Imaging, 86 MINN. L. REV.
1379, 1383 (2002) (“On a more basic level, technology advances pose the
challenges that always beset the constitutional enterprise–those involved with
trying to create fixed rules, or at least a workable rule of law, for a changing
world. In this regard, technology illustrates the problem with trying to rely on
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this new century, the Court decided Kyllo v. United States,26
which in tone and substance resembles Katz. Kyllo ruled that
a thermal imaging device directed at a home constituted a
search within the meaning of the Fourth Amendment. 27 The
Court explained that a search occurs when government
agents use sense-enhancing technology to collect any
information regarding the interior of a home that could not
otherwise be obtained without a physical invasion, “at least
where (as here) the technology in question is not in general
public use.”28 Like Katz, Kyllo is an important case for
assessing the Court's current thinking on the interplay of
technology and the Fourth Amendment. Kyllo's long-term
fixed understandings of how the world works.”); Gavin Skok, Establishing a
Legitimate Expectation of Privacy in Clickstream Data, 6 MICH. T ELECOMM. &
T ECH. L. REV. 61, 70 (2000) (noting the danger “that courts will rigidly adhere to
outdated Fourth Amendment concepts which are ill-suited to cyberspace, leading
to the conclusion that Web users lack legitimate expectations of privacy in
clickstream data”). Occasionally, the key to resolving an emerging issue of the
twenty-first century requires application of traditional constitutional doctrine.
For example, Professor Orin Kerr has noted that “[a]lthough the Internet is a
recent development with great promise for revolutionary change, the Fourth
Amendment questions raised by encrypting Internet communications are
decades (if not centuries) old.” Orin S. Kerr, The Fourth Amendment in
Cyberspace: Can Encryption Create a “Reasonable Expectation of Privacy?” 33
CONN. L. REV. 503, 532 (2001). In an insightful article, Professor Kerr contends
that encryption cannot create a constitutionally protected privacy interest, and
government efforts to unscramble an encrypted communication do not constitute
searches under the Fourth Amendment. Id. at 517-24. Professor Kerr predicts
that in resolving this issue, judges will ultimately discover that the Fourth
Amendment issue raised by encryption “involve[s] old wine in new bottles.” Id.
at 532.
26 533 U.S. 27 (2001).
27
Kyllo, 533 U.S. at 40.
28 Id. at 34. Kyllo's holding is announced in two different places in Justice
Scalia's opinion. See id. (“We think that obtaining by sense-enhancing
technology any information regarding the interior of the home that could not
otherwise have been obtained without physical `intrusion into a constitutionally
protected area' constitutes a search–at least where (as here) the technology in
question is not in general public use.”) (citation omitted); id. at 40 (“Where, as
here, the Government uses a device that is not in general public use, to explore
details of the home that would previously have been unknowable without
physical intrusion, the surveillance is a `search.'”). As Professor Christopher
Slobogin perceptively explains, although Kyllo's holding expands Fourth
Amendment protection to include thermal imaging, it also shrinks the
constitutional protection afforded private homes by codifying a “naked eye”
exception to the warrant requirement. See Christopher Slobogin, Peeping
Techno-Toms and the Fourth Amendment: Seeing Through Kyllo's Rules
Governing Technological Surveillance, 86 MINN. L. REV. 1393, 1410 (2002)
(explaining that, taken together, Kyllo's holdings “announce that if the activity
observed could be seen with the naked eye without physical intrusion into the
constitutionally protected areas of home or curtilage, then police may exploit any
technology–generally used or not–without implicating the Fourth Amendment.”);
id. at 1414 (noting that Kyllo “holds that enhanced searches of the home are
permissible if they merely duplicate naked eye searches from vantage points
that are not constitutionally protected”).
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impact on search and seizure doctrine, however, remains
uncertain.
In a thoughtful and well-reasoned article, Professor
David Sklansky states that Kyllo is likely to be one of the
“touchstones” for the Court when it decides future cases
involving the government's ability to use technology to
gather information and fight terrorism. 29 According to
Professor Sklansky, “[e]ven before [the] September 11
[terrorist attacks] . . . , it was apparent that Kyllo had
significance beyond its narrow holding and beyond its value
as a curiosity.”30 While I agree with much of Professor
Sklansky's analysis of Kyllo, I do not share his view that
Kyllo's analytical framework will be a “touchstone[]” for
future disputes involving technology and the Fourth
Amendment. I predict that Kyllo's impact on protecting
Fourth Amendment liberties, like Katz, will be slight. Just as
the Court later confined the “right” established in Katz to a
privilege against clandestine wiretapping and electronic
bugging without judicial supervision,31 the Court is likely to
construe the “right” announced in Kyllo narrowly. In other
words, Kyllo, like Katz, will not prevent police officials from
using other types of technology to monitor and discover
information helpful to law enforcement interests.
Part I of this article briefly discusses the similarities
between Katz and Kyllo. This section describes the common
traits shared by Katz and Kyllo: both cases were immediately
recognized as important rulings, both cases signaled a shift
or readjustment of Fourth Amendment law, and both cases
rest on a simple, but persuasive logic about the scope of
protection provided by the Fourth Amendment. Part II
analyzes the substance of the Katz ruling and considers the
long-term impact of Katz for protecting Fourth Amendment
rights against technological innovations. This section
contends that Katz has failed to protect Fourth Amendment
rights for two reasons. First, Katz was a ruling without
substance. Second, the Justices who decided Katz were
unable to agree on the meaning of their ruling, which made it
easier for future Justices to ignore the relevance of Katz in
subsequent cases concerning the reach of the Fourth
29
30
31
Sklansky, supra note 24, at 144.
Sklansky, supra note 24, at 145.
See, e.g., United States v. United States Dist. Ct., 407 U.S. 297, 308 (1972).
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Amendment.
Part III considers what impact Kyllo may have on future
cases involving technology and the Fourth Amendment.
Although Kyllo's impact on Fourth Amendment liberties is
uncertain at this point, this section argues that Kyllo is
unlikely to prevent government officers from using
technology to monitor and reveal information. The final
section of the article, Part IV, examines how the Court might
address the constitutional status of e-mail addressing
information and whether Carnivore's pen mode intercept
constitutes a search un der the Fourth Amendment in a postKyllo world. Part IV contends that if Carnivore's pen mode
intercept is judged by the rule announced in Kyllo, then the
Court should find that this intrusion is a search.
Nevertheless, Part IV concludes with the prediction that the
Court will find that Carnivore's pen mode intercept does not
violate the Fourth Amendment.
I. THE SIMILARITIES BETWEEN KATZ AND KYLLO
A. Both cases were immediately recognized
as significant rulings
Katz and Kyllo share three prominent characteristics.
First, the public and legal profession recognized both cases
as significant rulings that would impact Fourth Amendment
doctrine. Legal commentators and the press immediately
recognized Katz as an important case. The press commented
on the break from the trespass rule32 and expressed surprise
that the Court was willing to uphold any electronic
surveillance,33 while legal commentators commented on the
Court's new methodology for determining when a search
occurs. 34 Likewise, while Kyllo involved rather narrow facts,
32
Fred P. Graham, A Plug in the `Big Ear,' N.Y. T IMES, Dec. 24, 1967, § 4,
at 10 (“Last week the Supreme Court faced up to the scientific facts of life and
held that the Fourth Amendment covers all police eavesdropping, whether
accomplished by means of a trespass into private premises or not.”).
33
See id. (“[That the Court added that the bugging in Katz would have been
constitutional had a search warrant been procured] caught many lawyers by
surprise, because the tone of the Supreme Court's recent eavesdrop decisions
has been so hostile that people assumed the Justices would hedge police-bugging
in with so many legal technicalities that almost any useful eavesdropping would
be deemed unconstitutional.”); Fred P. Graham, N.Y. T IMES, Dec. 19, 1967, at A1
(“[T]he wording of the [Katz] decision erased an impression that had been
created in a decision of the Court last June that the Supreme Court would insist
on such elaborate procedures in connection with these warrants that bugging
would become virtually useless as a police tool.”).
34
See, e.g., Note, From Private Places to Personal Privacy: A Post-Katz
Study of Fourth Amendment Protection, 43 N.Y.U. L. REV. 968 (1968)
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the press and legal academics quickly noted the significance
of the ruling and the possible effect the ruling could have on
the government's use of technology.35
B. Both cases readjusted Fourth Amendment law
Both Katz and Kyllo also signaled a shift, or
readjustment, in Fourth Amendment law. Katz, authored by
Justice Stewart, explicitly rejected two concepts that
previously influenced the shape of search and seizure
(describing Katz as a “landmark” case); id. at 981 (“[T]he Katz decision has
pointed the way towards a complete re-orientation in the analysis of problems
relating to governmental intrusion into individuals' private affairs.”); id. (“Rather
than relying on an interpretation of the nature and legitimacy of the
Government's searching activity, the Court's holding was based solely on the
validity of the individual's expectation of privacy. . .”); Kitch, supra note 22, at
133 (“The Supreme Court is moving toward a redefinition of the scope of the
Fourth Amendment. Katz v. United States, . . . indicates that the Court is now
prepared to release the Fourth Amendment, . . . from the moorings of precedent
and determine its scope by the logic of its central concepts.”) (footnotes omitted).
35 See, e.g., Linda Greenhouse, The Supreme Court: Ruling on Surveillance
Procedures; Justices Say Warrant Is Required in High-Tech Searches of Homes,
N.Y. T IMES, June 12, 2001, at A1 (describing Kyllo as an “important declaration
of the constitutional limits on new privacy-threatening technology”); Linda
Greenhouse, As Crime Ebbs, Top Court's Privacy Rulings Flow, N.Y. T IMES,
June 17, 2001, § 4, at 16 (noting: “It is almost as if the public, liberated from the
burdensome presence of crime, is free to express doubts about the civic costs of
a whole range of crime-fighting strategies, from racial profiling to high-tech
eavesdropping to low-tech drug-sniffing dogs.”); David G. Savage, Court Says No
to Home Snooping Law: U.S. Justices Restrict the Use of Heat Sensors and
Other High-Tech Spy Devices by Police, L.A. T IMES, June 12, 2001, at A1 (“The
ruling appears to put a significant limit on the government's use of new
technologies that can pick up sounds or images inside a home . . . . The decision
itself marked the third major ruling this year in which the justices have rejected
drug searches and put new limits on the war on drugs.”); Edward Walsh, HighTech Devices Require a Warrant; Court: Search Violates Privacy Right, WASH.
P OST, June 12, 2001, at A1 (“`It means that the Fourth Amendment is going to
apply to all the high-tech technology that is rapidly being developed. Big Brother
must now pay attention to constitutional principles.'”) (quoting Steven R.
Shapiro, national legal director of the American Civil Liberties Union); cf. id.
(“`It is an additional step they have to go through. The Fourth Amendment is
important, privacy is important, but this is not a blockbuster case.'”) (quoting
Kent Scheidegger, legal director of Criminal Justice Legal Foundation); Michelle
M. Jochner, Privacy Versus Cyber-Age Police Investigation: The Fourth
Amendment in Flux, 90 ILL. BAR J. 70 (describing Kyllo as a “landmark
decision”); id. (“The Court's decision in Kyllo makes it clear that although
technology have evolved, the intent underpinning the Fourth Amendment
remains constant.”). Two other commentaries have discussed Kyllo. See Sean D.
Thueson, Fuzzy Shades of Gray: The New “Bright-Line” Rule in Determining
When the Use of Technology Constitutes a Search, 2 WYO. L. REV. 169 (2002);
Sarilyn E. Hardee, Why the United States Supreme Court's Ruling in Kyllo v.
United States Is Not the Final Word on the Constitutionality of Thermal
Imaging, 24 CAMPBELL L. REV. 53 (2001).
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doctrine. Prior to Katz, a judicial finding that the challenged
police action invaded a “constitutionally protected area” was
necessary to trigger the Amendment's safeguards. 36 In their
briefs to the Court, the litigants contested whether a public
telephone booth was a constitutionally protected area.
Justice Stewart, however, found the debate unhelpful. “[T]his
effort to decide whether or not a given `area,' viewed in the
abstract, is `constitutionally protected' deflects attention
from the problem presented by this case.”37 At this point,
Justice Stewart wrote the lines that would symbolize the
meaning and spirit of Katz:
For the Fourth Amendment protects people, not places. What a
person knowingly exposes to the public, even in his own home
or office, is not a subject of Fourth Amendment protection. But
what he seeks to preserve as private, even in an area
accessible to the public, may be constitutionally protected.38
In addition to dismissing the importance of whether the
intrusion compromised a constitutionally protected area, Katz
also rejected the rule that invocation of Fourth Amendment
protection required a physical intrusion or “trespass” by
government officials. 39 Justice Stewart acknowledged that the
Court's previous rulings barred constitutional scrutiny of
police intrusions in the absence of a physical penetration
because the Amendment “was thought to limit only searches
and seizures of tangible property.”40 Justice Stewart, however,
explained that the “trespass” rule was no longer viable in
light of the Court's more recent rulings that the Amendment
covers the seizure of oral statements, even when a police
intrusion was not a trespass under local property law. “Once
this much is acknowledged, and once it is recognized that the
Fourth Amendment protects people—and not simply
`areas'—against unreasonable searches and seizures, it
becomes clear that the reach of that Amendment cannot turn
upon the presence or absence of a physical intrusion into any
36 See 1 L A F AVE , supra note 21, § 2.1(a) at 380 (explaining that what the preKatz cases “added up to, as the Supreme Court was later to put it, was that for
there to be a Fourth Amendment search the police must have physically
intruded into `a constitutionally protected area'”) (citations and footnote omitted).
In Katz, Justice Stewart acknowledged this point, although he sought to
downplay the determinative weight given in prior cases to the concept of a
“constitutionally protected area.” See Katz v. United States, 389 U.S. 347, 351,
n.9 (1967) (explaining that the Court has “never suggested that this concept can
serve as a talismanic solution to every Fourth Amendment problem.”).
37
Katz, 389 U.S. at 351 (footnote omitted).
38 Id at 351-52 (citations omitted).
39
Id.
40 Id. at 352-53 (footnote omitted).
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given enclosure.”41 Thus, with bold strokes, Katz rejected
previous understandings that had dictated the reach and
meaning of the Fourth Amendment. After Katz, the scope of
the Amendment would not only be loosened from the ancient
niceties of common-law property rules, but the substantive
content of the Amendment would derive from thoroughly
modern and realistic understandings of the privilege against
unreasonable searches and seizures. 42
Like Katz, Kyllo also represents a shift, albeit subtle, in
the Court's approach to defining what is a “search” under the
Amendment. The government contended that the thermal
imaging directed at Kyllo's home was not a search because it
did not reveal any intimate details of his home.43 The Court's
“threshold” cases seemed to support the Government's
position. Indeed, since at least 1984, the Court had strongly
intimated that police in trusions directed at homes might not
trigger constitutional inquiry unless those intrusions
interfered with or revealed intimate activities associated with
the home. For example, in Oliver v. United States, 44 the Court
explained that the Amendment's protection of “houses” went
beyond merely protecting the physical interior of a home; it
also protected the curtilage of the home.45 Citing the common
law, Oliver opined that the curtilage “is the area to which
extends the intimate activity associated with the `sanctity of a
man's home and the privacies of life,' and therefore has been
Id. at 353.
See id. at 352 (“No less than an individual in a business office, in a friend's
apartment, or in a taxicab, a person in a telephone booth may rely upon the
protection of the Fourth Amendment. One who occupies it, shuts the door
behind him, and pays the toll that permits him to place a call is surely entitled to
assume that the words he utters into the mouthpiece will not be broadcast to
the world. To read the Constitution more narrowly is to ignore the vital role
that the public telephone has come to play in private communications.”).
Professor Amsterdam cogently recognized that the crucial question at stake in a
case like Katz is “a value judgement.” Amsterdam, supra note 23 at 403 (“The
ultimate question, plainly, is a value judgment. It is whether, if the particular
form of surveillance practiced by the police is permitted to go unregulated by
constitutional restraints, the amount of privacy and freedom remaining to
citizens would be diminished to a compass inconsistent with aims of a free and
open society.”).
43 See Brief for the United States at 22, Kyllo (99-8508) (“This Court's
decisions establish . . . that the Fourth Amendment does not preclude the
government from obtaining the assistance of technology to observe an area that
is exposed to the public, provided that the technology does not permit the
government to detect private activities occurring in the private areas.”)
(emphasis added).
44 466 U.S. 170 (1984).
45
Oliver, 466 U.S. at 181 n.12.
41
42
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considered part of the home itself for Fourth Amendment
purposes.”46
United States v. Dunn47 elevated Oliver's dicta on the
meaning of curtilage to law. In Dunn, the Court adopted
Oliver's definition of curtilage and noted that a “central
component of th[e] inquiry [regarding the extent of a home's
curtilage is] whether the area harbors the intimate activity
associated with the `sanctity of a man's home and the
privacies of life.'”48 Dunn then identified several factors for
determining whether a particular area fell within the
curtilage of a home.49 One factor considered “the nature of the
u ses to which the area is put.”50 When applying this criterion
to the facts in Dunn, the Court explained that it was
“especially significant that the law enforcement officials
possessed objective data indicating that the [area] was not
being used for intimate activities of the home.”51
Oliver and Dunn were not the only cases lending support
to the government's claim in Kyllo that police conduct
directed at a home did not trigger constitutional scrutiny
unless it revealed intimate details of the home. The Court
held in California v. Ciraolo52 that no search occurred when
police officers, flying in navigable airspace, observed
marijuana growing in a fenced-in backyard.53 The fact that the
activities that the police observed lay within the curtilage did
not help Ciraolo. 54 The Court ruled that the flyover was not a
search because the surveillance occurred in “a physically
nonintrusive manner” and within “public navigable
airspace.”55 Although Ciraolo ruled that police flyovers do not
trigger Fourth Amendment rev iew, the Court left open the
possibility that other types of aerial observations might
produce a different result. 56 In particular, the Court
highlighted the State's concession that “`[a]erial observation
of curtilage may become invasive, either due to physical
Id. at 180 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).
480 U.S. 294 (1987).
Dunn, 480 U.S. at 300 (quoting Oliver, 466 U.S. at 180) (internal
quotation marks omitted).
49 Id. at 301.
50
Id. The Court also looked to “the proximity of the area claimed to be
curtilage to the home, whether the area is included within an inclosure
surrounding the home . . . and the steps taken by the resident to protect the
area from observation by people passing by.” Id.
51
Id. at 302.
52 476 U.S. 207 (1986).
53
Ciraolo, 476 U.S. at 215.
54 In Oliver and Dunn, the police intrusions did not breach the curtilage.
55
Ciraolo, 476 U.S. at 213.
56 Id. at 215.
46
47
48
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intrusiveness or through modern technology which discloses
to the senses those intimate associations, objects or activities
otherwise imperceptible to police or fellow citizens.'”57
Three years after deciding Ciraolo, in Florid a v. Riley58
the Court ruled that helicopter surveillance of a greenhouse
adjacent to a home was not a search.59 Noting that Ciraolo
controlled this case, Justice White's plurality opinion
explained that “because the sides and roof of his greenhouse
were left partially open” and because the observation
occurred while the helicopter was in navigable airspace, Riley
could not reasonably have expected that the interior of the
greenhouse would remain free from police inspection.60 At the
end of his opinion, however, Justice White acknowledged that
the helicopter observation did not interfere with the normal
use of the greenhouse or other parts of the curtilage and, most
importantly, “no intimate details connected with the use of
the home or curtilage were observed.”61
Relying on these cases and others not involving intrusions
of homes, the government argued in Kyllo that thermal
imaging was not a search because it did not “`detect private
activities occurring in private areas.'”62 This argument,
however, did not persuade Justice Scalia. According to Scalia,
“[t]he Fourth Amendment's protection of the home has never
been tied to measurement of the quality or quantity of
information obtained.”63 Justice Scalia then stated: “In the
home, our cases show, all details are intimate details, because
the entire area is held safe from prying government eyes.”64
57 Id. at 215, n. 3, quoting Brief for Petitioner 14-15 (emphasis added). In
Dow Chem. Co. v. United States, 476 U.S. 227 (1986), the Court held that aerial
photography of an industrial complex did not constitute a search. Dow Chem.
Co., 476 U.S. at 234. While acknowledging that the use of “highly sophisticated
surveillance equipment not generally available to the public, such as satellite
technology, might be constitutionally proscribed absent a warrant,” the Court
stressed that the challenged photos did not reveal “intimate details as to raise
constitutional concerns.” Id. at 238 (emphasis added).
58
488 U.S. 445 (1989).
59 Riley, 488 U.S. at 448.
60
Id. at 448-50.
61 Id. at 452.
62
Kyllo v. United States, 533 U.S. 27, 37 (2001) (quoting Brief for United
States at 22); see also Andrew Riggs Dunlap, Fixing the Fourth Amendment
with Trade Secret Law: A Response to Kyllo v. United States, 90 GEO. L.J. 2175,
2184-85 (2002) (noting cases where the Court suggested that unless government
conduct revealed “intimate details” of the home, no search occurred).
63 Kyllo, 533 U.S. at 37.
64
Id.
63
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Thus, the information that the thermal imaging device
revealed, “how warm—or even how relatively warm—Kyllo
was heating his residence,” was protected against government
snooping.65
Therefore, with little fanfare, Kyllo turned aside a
momentum that had been building in the Court's prior cases. 66
Those cases suggested that unless the challenged police
conduct compromised intimate activities of the home, Fourth
Amendment review was unavailable. 67 Justice Scalia's opinion
signals a readjustment in the Court's thinking on this issue.68
Just as Katz discarded a narrow view of the Fourth
Amendment's scope,69 Kyllo also rejected the notion that a
65 Id. at 38 (footnote omitted). Justice Scalia dismissed the government's
reliance on Ciraolo's dictum cautioning against police use of modern technology
that exposes “intimate associations, objects or activities otherwise imperceptible
to police or fellow citizens.” Id. at n.5 (quoting Ciraolo, 476 U.S. at 215 n.3). In
Justice Scalia's view, Ciraolo's “focus in this second-hand dictum was not upon
intimacy but upon otherwise-imperceptibility, which is precisely the principle we
vindicate today.” Id. at n. 5.
66 Justice Scalia asserted that “our cases show, all details [of a home] are
intimate details, because the entire area is held safe from prying government
eyes.” Id. at 37. But United States v. Karo, 468 U.S. 705 (1984) and Arizona v.
Hicks, 480 U.S. 321 (1987), which are cited by Justice Scalia to support his
statement, are rather thin columns to support the rule that “all details” of a
home are constitutionally protected. Karo held that monitoring of a beeper
constitutes a search when it reveals information regarding the inside of a home
that could not have been obtained through visual surveillance. Karo, 468 U.S. at
715. Although Karo's holding is consistent with Justice Scalia's statement, before
Kyllo, the result in Karo had never been understood to stand for the proposition
that “all details” of a home are constitutionally protected. Rather, the result in
Karo turned on the fact that the beeper device used there helped the
government “obtain information that it could not have obtained by observation
from outside the curtilage of the house.” Id. at 715. Similarly, Hicks was about
limiting the scope of police entries into homes,66 rather than establishing a rule
that “all details” of a home are constitutionally protected. Hicks, 480 U.S. at 323.
The Hicks majority, in an opinion by Justice Scalia, first rejected the
government's claim that an officer's moving of stereo equipment to reveal its
serial number did not constitute a new “search” because it produced no
additional invasion of privacy separate from the already lawful presence of the
officer, which was justified by an emergency call that a shooting had occurred
inside the premises. Id. at 325 Justice Scalia explained that “taking action,
unrelated to the objectives of the authorized intrusion, which exposed to view
concealed portions of the apartment or its contents, did produce a new invasion
of respondent's privacy unjustified by the exigent circumstance that validated the
entry.” Id. at 325. He then noted: “A search is a search, even if it happens to
disclose nothing but the bottom of a turntable.” Id. Interestingly, the holdings in
Karo and Hicks did not prevent the Court from finding that the aerial intrusions
in Ciraolo and Riley were not searches despite the fact that the challenged
photography revealed details of the curtilage of private homes.
67
See supra notes 51-53, 65-66 and accompanying text.
68 See supra note 66 and accompanying text.
69
See Katz v. United States, 389 U.S. 347, 353 (1967) (noting that while
Olmstead held that “surveillance without any trespass and without the seizure
of any material object fell outside the ambit of the Constitution, we have since
departed from the narrow view”).
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police intrusion “must be rather substantial and must reveal
specifically certain intimate details” to invoke Fourth
Amendment scrutiny.70 For this reason, Professor LaFave
applauds Justice Scalia's opinion “for foregoing [one of] the
various privacy-belittling techniques that have become rather
common in efforts to narrow the protections of the Katz
doctrine.”71
A second feature of Kyllo's reasoning—the importance of
bright-line rules—also indicates a change of direction, albeit a
shift that may be temporary, from the Court's most recent
case involving the scope of protection afforded private homes.
In Kyllo, Justice Scalia stated that restricting “the prohibition
of thermal imaging to `intimate details' would not only be
wrong in principle; it would be impractical in application,
failing to provide `a workable accommodation between the
needs of law enforcement and the interests protected by the
Fourth Amendment.'”72 He then noted the inability of police
officers to predict the amount of detail that a particular
thermal imaging device will reveal. 73 Justice Scalia also
wondered whether the Court was capable of articulating a
Fourth Amendment rule that identifies which activities of the
home are “`intimate' and which are not.”74 And even if the
Court announced such a rule, “no police officer would be able
to know in advance whether his through-the-wall surveillance
picks up `intimate' details—and thus would be unable to know
in advance whether it is constitutional.”75 Accordingly, Justice
Scalia concluded that because the Fourth Amendment “draws
`a firm line at the entrance to the house,'”76 police officers are
better served if the line is not “only firm but also
bright”—which means “clear specification of those methods of
surveillance that require a warrant.”77
70
2002).
1 WAYNE R. L AF AVE, SEARCH
AND
SEIZURE § 2.2, at 77 (3d ed. 1996) (Supp.
Id. at 76.
Kyllo, 533 U.S. at 38 (quoting Oliver v. United States, 466 U.S. 170, 181
(1984)).
73
See id. at 38 (noting “there is no necessary connection between the
sophistication of the surveillance equipment and the `intimacy' of the details that
it observes—which means that one cannot say (and the police cannot be
assured) that use of the relatively crude equipment at issue here will always be
lawful”).
74 Id. at 39.
75
Id.
76 Id. at 40 (quoting Payton v. New York, 445 U.S. 573, 590 (1980)).
77
Kyllo, 533 U.S. at 40.
71
72
65
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Kyllo's emphasis on the importance of bright-line rules is
a notable change of direction from the reasoning of the Court
in Minnesota v. Carter.78 In Carter, a police officer, peering
through a gap in the closed blinds of an apartment window,
observed three individuals bagging cocaine—the female
leaseholder of the premises and two men, Carter and Johns. 79
Police eventually arrested the men outside of the apartment
and later learned that the men had entered the apartment for
the sole purpose of packaging cocaine, had no prior contact
with the premises, and that the men were in the apartment
for approximately two-and-one-half hours. 80 The issue
confronting the Court was whether Carter and Johns had a
legitimate expectation of privacy in their host's home.81
Chief Justice Rehnquist's plurality opinion neatly
summarized the extant doctrine. “[A]n overnight guest in a
home may claim the protection of the Fourth Amendment, but
one who is merely present with the consent of the
householder may not.”82 The facts in Carter were “obviously
somewhere in between” the per se rules that the Court's prior
cases established. The Chief Justice concluded that the men
could not invoke the Fourth Amendment's protection because
of “the purely commercial nature” of their behavior, their
“relatively short period of time [spent] on the premises, and
the lack of any previous connection” between the men and
their host. 83
Justice Kennedy wrote a separate concurring opinion
providing the fifth vote in Carter.84 Interestingly, Justice
Kennedy noted that the “[s]ecurity of the home must be
guarded by the law in a world where privacy is diminished by
enhanced surveillance and sophisticated communication
systems.”85 He also expressed his agreement with the
dissenting Justices' view that reasonable expectations of the
host “are shared, to some extent, by the guest.”86 For Justice
Kennedy, this suggested a general rule: “social guests will
78
525 U.S. 83 (1998).
Carter, 525 U.S. at 85.
Id. at 86
81 Id. at 87.
82
Id. at 90.
83 Id. at 91.
84
Id. at 99.
85 Id. at 99 (Kennedy, J., concurring). Despite this professed concern about
privacy being “diminished by enhanced surveillance and sophisticated
communications systems,” Justice Kennedy dissented in Kyllo. Id.
86
Id. at 102. At the start of his opinion, Justice Kennedy explained that he
joined the Chief Justice's opinion because “its reasoning is consistent with my
view that almost all social guests have a legitimate expectation of privacy, and
hence protection against unreasonable searches, in their host's home.” Id. at 99.
79
80
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have an expectation of privacy in their host's home.”87 That
said, however, Justice Kennedy concluded that Carter and
Johns could not rely on the Fourth Amendment's protection
because they had “nothing more than a fleeting and
insubstantial connection” with their host's home.88 Justice
Kennedy saw no reason “to fashion a per se rule of home
protection, with an automatic right for all in the home to
invoke the exclusionary rule, in order to protect homeowners
and their guests from unlawful police intrusion.”89
Although Kyllo and Carter both addressed the degree of
protection the Fourth Amendment provides for individuals
located in a home, Kyllo's stress on the importance of brightline rules to protect the privacy of the home and to provide
guidance for police contrasts sharply with the balancing
analysis of Carter.90 Doubtlessly unintended, Justice Scalia's
predilection for bright-line rules that protect the home is
reminiscent of the per se rules that the Warren and Burger
Courts established. In cases like Karo v. United States,91
Steagald v. United States,92 Payton v. New York,93 Mincey v.
Arizona,94 Vale v. Louisiana,95 Stoner v. California,96 and
Chapman v. United States,97 bright-line rules were announced
to protect the privacy and security of the home. 98
Countervailing law enforcement interests can usually be
found to justify a police intrusion of a home, especially when
evidence of criminal conduct is discovered.99 In the past, the
Court developed per se rules to pre-empt the ad hoc
arguments frequently used to compromise Fourth
87
Id. at 102.
Id. at 102.
Id. at 103.
90 See supra notes 82-83 and accompanying text.
91
468 U.S. 705 (1984).
92
451 U.S. 204 (1981).
93 445 U.S. 573 (1980).
94
437 U.S. 385 (1978).
95 399 U.S. 30 (1970).
96
376 U.S. 483 (1964).
97 365 U.S. 610 (1961).
98
Minnesota v. Olson, 495 U.S. 91, 93 (1989), which held that an overnight
guest is entitled to rely on the privacy of his host's home, is an example of a
bright-line rule protecting homes announced by the Rehnquist Court.
99 In his dissent in Kyllo, Justice Stevens noted the “strong public interest”
served by a thermal imager. See Kyllo, 533 U.S. at 45 (Stevens, J., dissenting)
(“[P]ublic officials should not have to avert their senses or their equipment from
detecting emissions in the public domain such as excessive heat, traces of
smoke, suspicious odors, odorless gases, airborne particulates, or radioactive
emissions, any of which could identify hazards to the community.”).
88
89
67
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Amendment interests. 100
Bright-line rules are also meant to provide guidance to
the police; balancing models seldom afford such guidance. The
reasoning of the Chief Justice and Justice Kennedy in Carter
illustrate the dangers of balancing. How is an officer to know
in advance whether his “Peeping-Tom” observations are
directed at a guest or visitor who is entitled to share his
host's privacy? Whether a person is entitled to constitutional
protection against arbitrary police snooping should not
depend on information that is later discovered by the police.
Nor should the constitutionality of an officer's snooping turn
on the length of a person's visit or whether he stays overnight.
“Otherwise, a homeowner's sexual partner would have no
expectation of privacy in the home and no standing to object if
the police peered through the closed blin ds of a bedroom
window, unless that sexual partner spent the night.”101 More
importantly, the ad hoc balancing analysis in Carter
undermines the security of private homes. The result in
Carter, as Professor Susan Bandes notes “encourages . . .
searches of homes that invade the privacy of homeowners, so
long as it is the visitor, not the homeowner, who is caught
with contraband.”102 In sum, Justice Scalia's decision in Kyllo
to adopt a bright-line rule protecting “all details” of the home,
no matter how insignificant the information, calls to mind an
earlier judicial attitude about Fourth Amendment rules that
affect the home and is a notable change of direction from the
100
See, e.g., Mincey v. Arizona, 437 U.S. 385, 393 (1978) (noting that the
importance of the state's interest in prompt investigation of a murder, but
explaining that a similar interest is extant for other serious crimes; “[i]f the
warrantless search of a homicide scene is reasonable, why not the warrantless
search of the scene of a rape, a robbery, or a burglary? `No consideration
relevant to the Fourth Amendment suggests any point of rational limitation' of
such a doctrine.”) (quoting Chimel v. California, 395 U.S. 752, 766 (1969)).
101 Tracey Maclin, What Can Fourth Amendment Doctrine Learn from
Vagueness Doctrine?, 3 U. P A. J. CONST. L. 398, 434-35 (2001) (footnote omitted).
Professor LaFave takes a different view of the impact of Carter. According to
LaFave:
Carter should not be taken to mean, with regard to a social guest, that if
something less than an overnight stay will suffice, the stay must be
longer than the [two-and-a-half] hour visit in that case. This is because
the Court acknowledged that the situation there fell somewhere
between that of the Olson overnight guest (who had standing) and one
who `merely' is lawfully present (without standing by virtue of the
repudiation of [Jones v. United States, 362 U.S. 257 (1960)]), and then
held it to be closer to the latter only after factoring in the lesser
expectation of privacy that attends `property used for commercial
purposes.' There is no reason why a much shorter-term social visitor
should be deemed to lack standing.
Id. at 5 L AF AVE, supra note 70, § 11.3 at 23.
102 Bandes, supra note 25 at 1381 (footnote omitted).
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Court's most recent ruling involving the protection afforded
private homes.
C. Both cases rest on simple, but persuasive logic
A final characteristic that Katz and Kyllo share is that
both cases based their conclusions on a simple, but
persuasive, logic. In Katz, Justice Stewart explained that a
person who enters a telephone booth, “shuts the door behind
him, and pays the toll that permits him to place a call is
surely entitled to assume that the words he utters into the
mouthpiece will not be broadcast to the world.”103 A contrary
view would “ignore the vital role that the public telephone
has come to play in private communication.”104 In Kyllo, the
crucial factor was that the thermal imaging device enabled
the government to discover information about the inside of a
home that was otherwise unavailable without a physical
intrusion. 105 For Justice Scalia, the legal question in Kyllo was
straightforward: Should the government be free to gather any
detail concerning the inside of someone's home without
complying with the requirements of the Warrant Clause? In
answering this inquiry, Justice Scalia saw a direct link
between thermal imaging and the intrusions that writs of
assistances and general warrants authorized, which prompted
the Framers to adopt the Fourth Amendment. 106 When viewed
from this perspective, the answer was clearly “no.” A contrary
view would compromise “that degree of privacy against
government that existed when the Fourth Amendment was
adopted.”107
103
Katz v. United States, 389 U.S. 347, 352 (1967); see also id. at 361
(Harlan, J., concurring) (same).
104
Id. Professor Lewis Katz nicely summarizes why Katz has been viewed as
a “seminal” case. “A seminal case should provide a framework for its later
application. However, the seminal quality of Katz lies in its understanding of
what the [F]ourth [A]mendment is about rather than in the clarity of its rule.”
Lewis R. Katz, In Search of a Fourth Amendment for the Twenty-first Century,
65 IND. L. J. 549, 562 (1990).
105
See supra note 73 and accompanying text.
106 Kyllo, 533 U.S. at 40 (noting that although the compromise of Kyllo's
privacy was insignificant, that fact is unimportant: “we must take the long view,
from the original meaning of the Fourth Amendment forward”).
107
Id. at 34.
69
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The above discussion establishes th at Katz and Kyllo
share certain common traits. Whether Kyllo's long-term
impact will be similar to the influence of Katz is currently
unknown. Although Kyllo's influence has yet to be
determined, one can still make predictions about its effect on
future Fourth Amendment doctrine. However, before
considering Kyllo's potency for the future, it may be
instructive to recall the influence of Katz. The following
section demonstrates that Katz's impact on protecting Fourth
Amendment liberties, particularly when technological
innovations threaten those liberties, has been insignificant
because Katz itself lacked substance. A lack of substance,
however, was not the only factor contributing to Katz's failure
to protect Fourth Amendment liberties. The Justices who
decided Katz could not agree on Katz's meaning. This lack of
consensus about a “landmark” case would make it easier for
future Justices to dismiss the relevance of Katz in subsequent
disputes concerning the Amendment's reach. To the extent
that Kyllo contains similar defects, its capability and strength
to protect Fourth Amendment interests against technological
advances may prove to be doubtful.
A. Katz's Lack of Substance
As described earlier, the reasoning and holding in Katz
rested on three factors. First, the Court dismissed the
importance of determining whether a telephone booth is a
“constitutionally protected area.”108 Second, the Court
rejected the “trespass” rule of prior cases. 109 Third, the Court
emphasized the practical and vital role that public telephones
play in private communications. 110 Taken together, these
factors moved the Court to find that “a person in a telephone
booth may rely upon the protection of the Fourth
Amendment.”111 The factors cited in Katz lead to the sensible
result that telephone conversations are entitled to
constitutional protection.112 But when these factors are
removed from the facts in Katz, their usefulness for deciding
the scope of the Fourth Amendment's protection in other
108
109
110
111
112
Katz, 389 U.S. at 351.
Id. at 352-53.
Id. at 359.
Id. at 352.
Id. at 357.
71
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contexts becomes illusory.
Consider, for example, Katz's rejection of the litigants'
efforts to determine whether a telephone booth was a
“constitutionally protected area.”113 Justice Stewart asserted
that focusing on whether a telephone booth is a
constitutionally protected place “deflects attention from the
problem presented by the case.”114 He then wrote his famous
epigram: “[T]he Fourth Amendment protects people, not
places.”115 This statement, while literally true, begs the
question.116 More importantly, asserting that the Amendment
protects “people, not places,” provides no guidance for
determining, in future cases, when the Amendment protects
people. 117 T h e e m p t i n e s s o f J u s t i c e S t e w a r t ' s q u i p
undoubtedly prompted Justice Harlan's clarification
regarding the Amendment's scope. Justice Harlan noted that
simply asserting “the Fourth Amendment protects people, not
places” tells us nothing because the crucial question “is what
protection it affords to those people.”118 According to Justice
Harlan, “the answer to that question [generally] requires
reference to a `place.'”119 However, if one accepts Justice
113
Id. at 351.
Id.
Id.
116 See, e.g., Amsterdam, supra note 23 at 385 (noting that the formula in
Katz “begs the question. But I think it begs the question no more or less than
any other theory of fourth amendment coverage the Court has used.”). See also
1 L AF AVE, supra note 21, § 2.1(b) at 385. Professor LaFave remarks:
[I]t can hardly be said that the [Katz] Court produced clarity where
theretofore there had been uncertainty. If anything, the exact opposite
has occurred. The pre-Katz rule, though perhaps `unjust,' was `a
workable tool for the reasoning of the courts.' But the Katz rule, which
the Court has since—somewhat inaccurately—stated as the `reasonable
“expectation of privacy”' test, is by comparison `difficult to apply.' In
short, the Katz `opinion offers little to fill the void it has thus created.'
1 L AF AVE, supra note 21, at 385 (footnotes omitted).
117
See, e.g., Clancy, supra note 1, at 339 (arguing that the Katz analysis has
“no textual support in the language of the amendment” and thus “leaves the
fluid concept of privacy to the vagaries of shifting Court majorities, which are
able to manipulate the concept to either expand or contract the meaning of the
word at will”) (footnote omitted); Katz, supra note 104, at 559-60 (“[Justice
Stewart's opinion] freed the [F]ourth [A]mendment from the chains imposed by
the property limitation and the requirement of a physical trespass but provided
modest guidance for determining the justiciability of an expectation of privacy in
other contexts.”). Cf. Ku, supra note 1, at 1346 (arguing that “by failing to
provide any real guidance to the privacy value, [Katz] did not shut the door to
examining [the means used by government agents], and subsequent decisions
have taken advantage of this opening, artfully transforming the reasonable
expectation of privacy test into a means-oriented analysis”) (footnote omitted).
118
Katz, 389 U.S. at 361 (Harlan, J., concurring).
119 Id. See also David A. Harris, Superman's X-Ray Vision and the Fourth
Amendment: The New Gun Detection Technology, 69 T EMP. L. REV. 1, 18 (1996)
(explaining that after Katz “Fourth Amendment protection depends not only on
114
115
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Harlan's reinterpretation of Katz, then, as Professor Sklansky
observes, “the most famous words in Katz seem drained of
most of their content.”120
As Justice Harlan and others have recognized, Katz's
replacement for the concept of a “constitutionally protected
area”—asserting that the “Fourth Amendment protects
people, not places”—was a constitutional norm without
substance. Because it is essentially meaningless, the norm
that symbolizes the spirit and meaning of Katz, ironically, has
proved to be quite ineffective, as a practical matter, in
protectin g people. Katz's malleability and emptiness made it
especially vulnerable in cases involving technological change.
For example, within three years of the Katz decision, the
Court confronted an issue that had divided the Justices in
1952. In United States v. White,121 the Court had to decide
whether the testimony of federal officers concerning
conversations between the defendant and a government
informant, which the officers monitoring the frequency of a
radio transmitter that the informant carried overheard,
implicated the Fourth Amendment. 122 Like On Lee, White
ruled that the officers' electronic surveillance was not a
search. Speaking for a plurality of the Court, Justice White
explained the result with a syllogism: If a person assumes the
risk that a secret government spy, acting without electronic
equipment, might later reveal the contents of a conversation,
the risk is the same when the spy simultaneously records and
transmits the conversation to a government officer.123 In both
situations, “the risk is his,” and the Fourth Amendment
provides no protection against government conduct to obtain
information in this manner.124
For the White plurality, Katz was irrelevant. 125 “Although
how an individual protects his privacy, but where and in what situation he does
so”).
120
Sklansky, supra note 24 at 158; cf. Ric Simmons, From Katz to Kyllo: A
Blueprint for Adapting the Fourth Amendment to Twenty-First Century
Technologies, 53 HASTINGS L.J. 1303, 1312 (noting that Justice Harlan's
reformation of the rule of Katz “sits somewhat awkwardly alongside the majority
opinion and makes it more difficult to give meaning to the vague `reasonable
expectations of privacy' test).
121
401 U.S. 745 (1971).
122 White, 401 U.S. at 746-47.
123
See id. at 751-52 (plurality opinion).
124 Id. at 752-53.
125
Justice White distinguished Katz this way:
Katz involved no revelation to the Government by a party to
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Katz announced that the Court would no longer be controlled
by rigid and antiquated concepts when formulating the scope
of the Fourth Amendment, the White plurality read Katz as
having no impact on the secret spy cases”126 decided before
Katz. The White plurality, without any discussion or analysis
of the doctrinal shift announced in Katz, reaffirmed prior
holdings that authorized unchecked surveillance of private
conversations and unbridled invasions of private homes and
offices whenever informants are available to gather
information for the government. If the “Fourth Amendment
protects people, and not places,” as Katz insisted, then why is
the Amendment inapplicable against government efforts to
record conversations or infiltrate homes or offices using
secret informants?
If the Fourth Amendment restrains the discretion of the police
to wiretap or `bug' private conversations [conducted in
telephone booths], it is not apparent why that same provision is
inapplicable when the police monitor and record private
conversations through the use of a secret informant
deliberately position[ed] to hear those conversations. After all,
a secret informant acts as a `human bug' for the government.127
The result in White proved that Katz offered no protection
against this type of unchecked government electronic
surveillance.
Katz's announcement that “the Fourth Amendment
protects people, not places,” also did not protect people from
the unbridled use of electronic surveillance employed in
Smith v. Maryland.128 The question Smith presented was
whether the installation and use of a pen register was a
search under the Amendment. 129 The Court ruled that the pen
register was not a search. Smith distinguished a pen register
conversations with the defendant nor did the Court indicate in any way
that a defendant has a justifiable and constitutionally protected
expectation that a person with whom he is conversing will not then or
later reveal the conversation to the police.
Id. at 749. Put simply, the Fourth Amendment does not cover eavesdropping by
the government with the connivance of one of the parties.
126
Tracey Maclin, Informants and the Fourth Amendment, 74 WASH. U. L. Q.
573, 620-21 (1996) (footnote omitted) [hereinafter Maclin, Informants].
127
Maclin, Informants, supra note 126, at 625.
128 442 U.S. 735 (1979).
129
The Court explained that a pen register “`is a mechanical device that
records the numbers dialed on a telephone by monitoring the electrical impulses
caused when the dial on the telephone is released. It does not overhear oral
communications and does not indicate whether calls are actually completed.'”
Smith, 442 U.S. at 736, n.1 (quoting United States v. N.Y. Tel. Co., 434 U.S. 159,
161, n.1 (1977)).
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from wiretapping on several grounds. 130 The crux of the
Court's logic, however, can be quickly summarized: The
Fourth Amendment is not implicated because a person has no
legitimate privacy interest in the telephone numbers he dials.
The person assumes the risk that the telephone company will
convey the numbers he dials to the government.
The Court was indifferent to the fact that technological
innovations granted the government greater and more
proficient access to information about a person's private
communications. 131 In the Court's view, contemporary
telephone equipment, including pen registers, is “merely the
modern counterpart of the operator who, in an earlier day,
personally completed calls for the subscriber.”132 Noting that a
person would have no legitimate privacy interest in the
numbers he dialed if an operator processed those calls, the
Court was “not inclined to hold that a different constitutional
result is required because the telephone company has decided
to automate.”133
Smith did proclaim, unlike the White plurality, that Katz
was its “lodestar” for determining whether governmentinitiated electronic surveillance triggered Fourth Amendment
scrutiny.134 But the protective shield of Katz was just as
ineffective in Smith as it was in White. When Katz stated “the
Fourth Amendment protects people, not places,” criticism of
this norm was muted because the majority of the Justices (like
the majority of the nation) thought that private telephone
conversations should be constitutionally protected. The
emptiness of this norm, however, created a vacuum that the
Court would have to fill in later cases where there was
greater controversy about the challenged police practice. As
130
Smith distinguished wiretapping from a pen register in the following
ways. First, unlike a listening device, a pen register “do[es] not acquire the
contents of communications.” Id. at 741. Literally speaking, pen registers are not
“recording devices” because they do not “`hear sound.'” Id. (quoting United
States v. N.Y. Tel. Co., 434 U.S. 159, 167 (1977)). Furthermore, unlike listening
devices, pen registers do not record “`any communication between the caller and
the recipient of the call, [disclose the] identities [of the callers], [or tell] whether
the call was even completed.'” Id.
131 In his dissenting opinion, Justice Stewart notes that: “[t]he numbers dialed
from a private telephone—although certainly more prosaic than the conversation
itself are not without `content.'” Id. at 748 (Stewart, J., dissenting). Pen registers
reveal, “the identities of the persons and the places called, and thus reveal the
most intimate details of a person's life.” Id. (Stewart, J., dissenting).
132
Id. at 744.
133 Id. at 745.
134
Id. at 739.
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those cases emerged, the Court needed legal theories to
support controversial results that divided the Justices. The
post-Katz Court used the expectations theory 135 and risk
analysis to define the scope of the Fourth Amendment. The
same assumption of risk theory supporting White's holding
supported Smith's holding. As Justice Stewart belatedly
recognized, however, “[i]t is simply not enough to say, after
Katz, that there is no legitimate expectation of privacy in the
numbers dialed because the caller assumes the risk that the
telephone company will disclose them to the police.”136
Regrettably, Justice Stewart's realization came too late.137 By
1979, Katz's famous words were a meaningless slogan, often
cited but lacking principle and influence. Expectations theory
and risk analysis replaced Katz as the defining methodology
135
See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
concurring) (explaining his view of the rule that has emerged through prior
decisions is that “there is a twofold requirement, first that a person have
exhibited an actual (subjective) expectation of privacy and, second, that the
expectation be one that society is prepared to recognize as `reasonable'”). In
White, Justice Harlan appeared to recant his endorsement of expectations theory
as a tool for measuring the Fourth Amendment's scope. See, United States v.
White, 401 U.S. 745, 786 (1971) (Harlan, J., dissenting) (explaining that legal
analysis in this context must “transcend the search for subjective expectations or
legal attribution of assumptions of risk. Our expectations, and the risks we
assume, are in large part reflections of laws that translate into rules the
customs and values of the past and present.”); see also, Amsterdam, supra note
23, at 384 (“Justice Harlan himself later expressed second thoughts about
[expectations theory], and rightly so. An actual, subjective expectation of privacy
obviously has no place in a statement of what Katz held or in a theory of what
the fourth amendment protects. It can neither add to, nor can its absence
detract from, an individual's claim to fourth amendment protection.”).
136
Smith, 442 U.S. at 747 (Stewart, J., dissenting). Justice Stewart argued
that Smith's risk analysis was inconsistent with Katz. He also contended that
risk analysis was a flawed legal theory because it proved too much. Telephone
conversations:
must be electronically transmitted by telephone company equipment, and
may be recorded or overheard by the use of other company equipment.
Yet we have squarely held that the user of even a public telephone is
entitled `to assume that the words he utters into the mouthpiece will
not be broadcast to the world.'
Id. at 746-47 (Stewart, J., dissenting) (quoting Katz, 389 U.S. at 352). Why
shouldn't a caller assume the risk that his conversation may be turned over to
the government, just as the numbers he dials may be conveyed to the
government? People do not assume that risk, or assume the risk that our mail
may be opened and read by government officers, because the Court has said we
do not have to assume those risks. Risk analysis is not based on a neutral
principle. We assume only those risks the Court says we must assume. See
KAMISAR ET AL., supra note 18 at 380 (citation omitted) (noting that we do not
assume the risk that our telephone calls or mail is being monitored because the
Court has ruled that the government may not conduct such surveillance).
137 Interestingly, Justice Stewart had joined the plurality opinion in White
which, as noted in the text, relied on the assumption of risk theory to support
the holding. See generally White, 401 U.S. at 745-54 (plurality opinion).
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for measuring the Fourth Amendment's protection.138
The second factor supporting Katz's reasoning and
holding adopted the view that “the reach of [the Fourth
Amendment] cannot turn upon the presence or absence of a
physical intrusion into any given enclosure.”139 Rejection of
the “trespass” rule heralded a new model of search and
seizure jurisprudence.140 Common-law property rules would
no longer dominate the debate about the scope and meaning of
the Fourth Amendment. Without being tethered to archaic
rules, the Court was free to conduct a modern and realistic
assessment about which police practices should be subject to
constitutional scrutiny. But loosening the connection between
search and seizure law and common-law rules did not enhance
Katz's authority to protect Fourth Amendment interests in
future cases. Indeed, besides the outcome in Katz itself,
rejection of the trespass rule rarely made a difference in
search and seizure rulings.
Rejection of the “trespass” rule ignited no real
138 See United States v. Miller, 425 U.S. 435 (1976). Miller ruled that a
government subpoena of bank checks and deposit slips from banks did not
constitute a search. The Court explained that the “depositor takes the risk, in
revealing his affairs to another, that the information will be conveyed by that
person to the Government.” Id. at 443. The “assumption of risk” rule applies
“even if the information is revealed on the assumption that it will be used only
for a limited purpose and the confidence placed in third party will not be
betrayed.” Id. For a detailed discussion of the Court's analysis in Smith, see
Clifford S. Fishman, Pen Registers and Privacy: Risks, Expectations, and the
Nullification of Congressional Intent, 29 CATH . U. L. REV. 557, 561 (1980)
(noting that “[a]lthough the result in Smith is supportable under the particular
facts of the case, the Court's reasoning poses significant problems of both
statutory and constitutional dimensions”); id. at 569 (asserting that Smith's
“reliance on Miller to support an assumption of risk rationale in the context of
electronic surveillance is rather tenuous”). Professor Daniel Solove describes the
constitutional framework established by risk analysis as the “new Olmstead.”
Although we have moved from the Boyd [v. United States, 116 U.S. 616
(1886)] and Olmstead world of physical papers and places to a new
regime based upon expectations or privacy, there is a new Olmstead,
one that is just as shortsighted and rigid in approach. The Court's new
conception of privacy is one of total secrecy. If any information is
exposed to the public or if law enforcement officials can view something
from any public vantage point, then the Court has refused to recognize
a reasonable expectation of privacy.
Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment
Privacy, 75 S. CAL. L. REV. 1083, 1133 (2002).
139 Katz, 389 U.S. at 353.
140
See, e.g., L AF AVE, supra note 21, § 2.2 (c) at 418 (describing Katz's
disapproval of the trespass rule as a “dramatic shift [which] made it quite clear
that the earlier [lower court] decisions upholding the use of telescopic devices by
reliance upon Goldman [v. United States, 316 U.S. 129 (1942)] and Hester [v.
United States, 265 U.S. 57 (1924)] could no longer be safely relied upon”).
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controversy among the Justices in Katz.141 One explanation for
this consensus may be that the trespass rule specifically, and
common-law property rules generally, no longer exerted
influence on search and seizure doctrine. Since at least the
1950's, the persuasive quality of these rules waned. “The
validity of the trespass rationale was questionable even at the
time [On Lee] was rendered” in 1952.142 Rulings subsequent to
On Lee further eroded the property-based foundations of
Fourth Amendment law.143 As Justice Harlan explained,
search and seizure doctrine immediately prior to Katz
demonstrated “no tolerance for the old dividing lines resting,
as they did, on fiction and common-law distinctions without
sound policy justification in the realm of values protected by
the Fourth Amendment.”144 Under this view, the Katz opinion,
rather than initiating a fundamental shift, was merely a final
and formal acknowledgement that the trespass rule had
outlived its usefulness. 145
Moreover, the trespass or physical penetration concept
was quickly becoming obsolete. Technological change was
allowing government officials to obtain information without
physical intrusions into constitutionally protected areas. Dog
sniffs, airplanes and electronic beepers were a small sample
of the types of technological advances that enabled the
government to obtain information without physical intrusion.
When litigants raised constitutional challenges against these
investigative devices, the Court responded as if it had not
141
Even Justice Black, the sole dissenter in Katz, did not object when the
Court jettisoned the trespass rule. See Katz, 389 U.S. at 368-69 (Black, J.,
dissenting) (explaining that the presence or absence of a trespass was not
determinative in the pre-Katz cases).
142
White, 401 U.S. at 774 (Harlan, J., dissenting); see also, Katz, supra note
104 at 558 (noting that by 1960, dissatisfaction with the trespass doctrine was
being expressed within the Court and by legal academics).
143 See, e.g., Warden v. Hayden, 387 U.S. 294 (1967). Seven months prior to
Katz, Hayden stated:
The premise that property interests control the right of the Government
to search and seize has been discredited. Searches and seizures may be
`unreasonable' within the Fourth Amendment even though the
Government asserts a superior property interest at common law. We
have recognized that the principal object of the Fourth Amendment is
the protection of privacy rather than property, and have increasingly
discarded fictional and procedural barriers rested on property concepts.
Hayden, 387 U.S. at 304 (citing Jones v. United States, 362 U.S. 257, 266 (1960)
and Silverman v. United States, 365 U.S. 505, 511 (1961)).
144
White, 401 U.S. at 778 (Harlan, J., dissenting).
145 Cf., id. at 780 (Harlan, J., dissenting) (“Viewed in perspective, then, Katz
added no new dimension to the law. At most it was a formal dispatch of
Olmstead and the notion that such problems may usefully be resolved in the
light of trespass doctrine, and, of course, it freed from speculation what was
already evident, that On Lee was completely open to question.”).
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decided Katz. For example, in United States v. Place,146 the
Court concluded that exposing personal luggage to a narcotics
detection dog was not a “search.”147 Place concluded “the
canine sniff is sui generis.”148 It does not “require opening the
luggage” and “discloses only the presence or absence of
narcotics, a contraband item.”149
The analytical tension between Place and Katz is
manifest. Why does it matter that the dog sniff does not
require opening of luggage? After all, Place recognized that “a
person possesses a privacy interest in the contents of
personal luggage that is protected by the Fourth
Amendment,”150 and conceded that “the sniff tells the
authorities something about the contents of the luggage,
[although] the information . . . is limited.”151 The absence of a
physical intrusion does not diminish a person's privacy
interest in his luggage, just as the absence of a physical
intrusion into a telephone booth did not diminish Katz's
interest in the privacy of his telephone conversations. More
importantly, Katz instructed that Fourth Amendment
protection does not turn on the presence or absence of a
physical intrusion. Thus, the “manner” of the police intrusion
462 U.S. 696 (1983).
Place, 462 U.S. at 707.
148 Id. Not surprisingly, “canine sniffs turned out not to be sui generis at all.”
Harris, supra note 119, at 30, n.177. The next year, in United States v.
Jacobsen, 466 U.S. 109 (1984), the Court employed the logic of Place to find that
a chemical field test of powdery substance did not constitute a search. Because
the chemical test—like the canine sniff—only revealed whether the powder was
cocaine or not, no Fourth Amendment interests were triggered. Jacobsen 466
U.S. at 123-24. “The [Jacobsen] Court also extended the reach of Place, by
saying that the search not only disclosed a limited amount of information, but
also that it disclosed only a type of information—the presence of absence of
cocaine—in which there could be no legitimate expectation of privacy.” Harris,
supra note 119, at 31.
149
Place, 462 U.S. at 707. Place explained that because there was no physical
intrusion, the dog sniff “does not expose noncontraband items that otherwise
would remain hidden from public view, as does, for example, an officer's
rummaging through the contents of the luggage. Thus, the manner in which
information is obtained through this investigative technique is much less
intrusive than a typical search.” Id.
150
Id. at 707 (citing United States v. Chadwick, 433 U.S. 1, 13 (1977)).
151
Id. As Professor Harris has noted, the canine sniff does not simply
augment human capabilities.
Although both man and dog can smell, the dog's nose was not simply a
way to enhance what the human at the end of the leash could do.
Rather, the canine nose is so much better-more sensitive and more
accurate—than its human counterpart that it simply could not be said to
replace it.
Harris, supra note 119 at 24, n.137.
146
147
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in Place should be irrelevant.
Likewise, California v. Ciraolo152 held that naked-eye
aerial observation of an individual's backyard did not
constitute a search. 153 Writing for a five Justice majority,
Chief Justice Burger asserted no search occurred because the
police observations “took place within public navigable
airspace” in a “physically nonintrusive manner.”154 Again,
Katz's impotence was evident. The dissent charged that the
Chief Justice had ignored fundamental elements of Katz's
reasoning. 155 Rather than address the obvious tension
between his reasoning and Katz, the Chief Justice essentially
confined the reach of Katz to a privilege against warrantless
wiretapping. 156 According to the Chief Justice, the concerns of
the Katz majority and Justice Harlan focused on electronic
interception of telephone communications. “One can
reasonably doubt that in 1967 [the Justices of Katz]
considered an aircraft within the category of future
`electronic' developments that could stealthily intrude upon
an individual's privacy.”157 Once the Chief Justice disabled
Katz in this way, it was easy to conclude that the Fourth
Amendment does not bar naked eye aerial observation of a
person's backyard.
Finally, the result and reasoning of United States v.
Knotts158 reveals the insignificance of Katz's proclamation that
the Fourth Amendment's reach “cannot turn upon the
presence of absence of a physical intrusion into any given
476 U.S. 207 (1986).
Ciraolo, 476 U.S. at 213-14.
154 Id. at 213.
155
Justice Powell's dissent in Ciraolo complained that the majority was
ignoring Justice Harlan's warning that any “decision to construe the Fourth
Amendment as proscribing only physical intrusions by police onto private
property `is, in the present day, bad physics as well as bad law, for reasonable
expectations of privacy may be defeated by electronic as well as physical
invasion.'” Id. at 215-16 (Powell, J., dissenting) (quoting Katz, 389 U.S. at 362
(Harlan, J., concurring)). Justice Powell also noted that the Ciraolo majority's
reliance on the fact that the flyover was conducted in a physically nonintrusive
manner directly contradicted Katz.
Reliance on the manner of surveillance is directly contrary to the
standard of Katz, which identifies a constitutionally protected privacy
right by focusing on the interests of the individual and of a free society.
Since Katz, we have consistently held that the presence or absence of
physical trespass by police is constitutionally irrelevant to the question
whether society is prepared to recognize an asserted privacy interest as
reasonable.
Id. at 223 (Powell, J., dissenting) (citation omitted).
156 See id. at 214.
157
Id. at 215.
158 460 U.S. 276 (1983).
152
153
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enclosure.”159 Knotts was the Court's first “beeper” case.160
Law enforcement officers installed a beeper in a drum of
chloroform that one of the defendants purchased in
Minnesota. Visual and electronic surveillance enabled officers
to monitor the whereabouts of the drum as it traveled from
Minnesota to Wisconsin. The officers eventually discovered
that the beeper signal was stationary and situated near a
secluded cabin. A subsequent search of the cabin pursuant to a
warrant, based in part on the information the officers had
obtained while monitoring the beeper, disclosed a drug
laboratory. The issue in Kn otts was whether the monitoring
was a search. Relying upon the lesser expectation of privacy
associated with cars, Knotts first stated that a “person
traveling in an automobile on public thoroughfares has no
reasonable expectation of privacy in his movements from one
place to another.”161
The Court then addressed whether the use of electronic
detection equipment triggered Fourth Amendment interests.
As in the other post-Katz cases that posed conflicts between
technology and Fourth Amendment rights, the Knotts Court
did not see Katz's reasoning as placing any constitutional
restraints on police use of beepers. In fact, Knotts's logic
proceeded as if the Court had never heard of Katz. According
to then-Justice Rehnquist, the author of Knotts, “[n]othing in
the Fourth Amendment prohibited the police from
augmenting the sensory faculties bestowed upon them at birth
with such enhancement as science and technology afforded
them in this case.”162 This statement, however, contradicts
Katz itself.163
Katz, 389 U.S. at 353.
The Court described the “beeper” as “a radio transmitter, usually battery
operated, which emits periodic signals that can be picked up by a radio receiver.”
Knotts, 460 U.S. at 277. The Court's second beeper case was Karo v. United
States, 468 U.S. 705 (1984). For a comprehensive and informative analysis of
Knotts and Karo, see Clifford S. Fishman, Electronic Tracking Devices and the
Fourth Amendment: Knotts, Karo, and the Questions Still Unanswered, 34
CATH . U. L. REV. 277 (1985); Melvin Gutterman, A Formulation of the Value
and Means Models of the Fourth Amendment in the Age of Technologically
Enhanced Surveillance, 39 SYRACUSE L. REV. 647, 699-707 (1988).
161
Knotts, 460 U.S. at 281.
162 Id. at 282.
163
See id. at 288 (Stevens, J., concurring). In Knotts, Justice Stevens stated
that the electronic augmentation “was unobjectionable, [but] it by no means
follows that the use of electronic detection techniques does not implicate
especially sensitive concerns.” Id. Professor Fishman, who generally supports the
result in Knotts, agrees with Justice Stevens' concern that sense-enhancement
159
160
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Under Justice Rehnquist's reasoning, the Fourth
Amendment provides no protection against electronic or
technological devices that enhance human senses, even when
electronic surveillance is indispensable to the government's
ability to gather information. Because the officers in Knotts
were unable to maintain visual surveillance of the drum as it
traveled from Minnesota to Wisconsin, the beeper allowed
them to locate the chloroform “when they would not have
been able to do so had they relied solely on their naked
eyes.” 1 6 4 Justice Rehnquist, however, concluded that
“scientific enhancement of this sort raises no constitutional
issues which visual surveillance would not also raise.”165 In
other words, because an officer in a car (or in a helicopter) 166
theoretically could have maintained visual observation of the
drum as it traveled across the country without triggering
constitutional protection, no constitutional concerns are
raised if that officer utilizes electronic equipment to
accomplish the same task.
In a technologically advanced society, acceptance of
Justice Rehnquist's rationale in Knotts—equating electronic
surveillance with what police might theoretically accomplish
with naked eye monitoring—means that the Fourth
Amendment will protect very little.167 In the theoretical
world, one can always imagine methods in which the police
are able to watch, listen, or even smell, the activities of a
suspect in order to detect useful information. In the real
equipment raise especially sensitive issues. Fishman, supra note 160, at 323. But
Professor Fishman also believes that the Knotts majority was aware of the
potential dangers posed by technological enhancement, and thus wrote a narrow
opinion that authorized only the specific surveillance at issue in that case.
Fishman, supra note 160, at 323.
164 Knotts, 460 U.S. at 285. Cf. Fishman, supra note 160, at 324, n.194
(acknowledging that the police did not learn of the defendant's destination by
visual surveillance).
165
Knotts, 460 U.S. at 285.
166
At one point in their surveillance of the defendant's automobile, the
defendant took evasive action and the officers ended their visual surveillance.
“At about the same time officers lost the signal from the beeper, but with the
assistance of a monitoring device located in a helicopter the approximate location
of the signal was picked up again about one hour later.” Knotts, 460 U.S. at 278.
167 Professor LaFave's reaction to Knotts has been more polite. “It is this
assumed equivalence between mere `visual surveillance' and `scientific
enhancement' in Knotts which is troublesome.” L AF AVE, supra note 21, §2.7(e) at
645. Professor LaFave properly notes what Justice Rehnquist refused to admit:
“The use of an electronic tracking device permits a much more extended and
thorough surveillance of an individual than would otherwise be possible.”
L AF AVE, supra note 21, §2.7(e) at 645. Cf. Ku, supra note 1, at 1348 (noting that
the practical impact of Knotts allows “government to monitor any individual
outside of the home twenty-four hours a day without any discussion of how that
monitoring might affect the individual or what that surveillance might do to the
relationship between government and individual”) (footnote omitted).
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world, however, police investigative methods are subject to
financial, personnel and political restraints. The scope of the
Fourth Amendment should not be measured by a judge's
ability (or inability) to conjure hypothetical scenarios in which
an individual's activities are monitored by police who are able
to “augment[] the sensory faculties bestowed upon them at
birth with such enhancement as science and technology”
permits. 168 Otherwise, very few human activities will be
beyond the government's surveillance capabilities.
The leeway given the police under Knotts's reasoning is
illustrated by applying Knotts's rationale to a “hypothetical”
Katz case. Under Knotts's logic, the result in Katz is
uncertain.169 Conceivably, lip-reading FBI agents could watch
and transcribe what they saw as Katz spoke in a glass
enclosed phone booth. If Katz became aware of the agents'
presence and covered his lips, presumably, under the analysis
of Knotts, the agents could turn on a wiretap to augment their
sensory faculties without triggering Fourth Amendment
scrutiny. Just as the officers in Knotts used electronic
equipment—without triggering constitutional safeguards—to
discover the location of the chloroform “when they would not
have been able to do so had they relied solely on their naked
eyes,”170 lip-reading FBI agents could have also used
electronic surveillance to ascertain Katz's communications
when they “would not have been able to do so had they relied
solely on their naked eyes.”171 In either case, “[n]othing in the
Fourth Amendment prohibited the police [or FBI] from
augmenting the sensory faculties bestowed upon them at birth
with such enhancement as science and technology afford[s].”172
As Justice Rehnquist suggested in Knotts , “scientific
enhancement of this sort raises no constitutional issues which
Knotts, 460 U.S. at 282.
Cf. 1 L AF AVE, supra note 21, § 2.7(e) at 646, n.114 (“[A] Smith-Knotts type
of analysis could well have produced the result that Katz lacked an expectation
of privacy because what he said could have been determined by a lip reader
some distance away or by a hypothetical bystander immediately adjacent to the
booth.”).
170 Knotts, 460 U.S. at 285.
171
Id. See also J OSHUA DRESSLER & GEORGE C. T HOMAS III, CRIMINAL
P ROCEDURE: P RINCIPLES, P OLICIES AND P ERSPECTIVES 88 (1999) (asking whether
the result in Katz would be the same if FBI agents “had positioned a lip reader
immediately outside the telephone booth who observed Katz's lips and recorded
his words on paper”).
168
169
172
Knotts, 460 U.S. at 282.
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visual surveillance would not also raise.”173 At bottom,
Knotts's reasoning raises doubts about the protection that
Katz provided.174
As in Smith v. Maryland, Place and Ciraolo, the reasoning
of Knotts shows that Katz's rejection of the trespass rule has
had little impact on subsequent search and seizure cases
involving technological and scientific innovations. Before it
was finally overruled, the trespass rule had lost its influence
among the Justices. Even if Katz had not reversed the
trespass rule, law enforcement investigative methods, with
the aid of technology, were advancing at such a rapid pace
that the government could obtain various types of information
without a physical intrusion into a constitutionally protected
a r e a . T h u s , Katz's proclamation on this point was
meaningless, and the Court's later decisions would show that
Katz's reasoning would matter little when police utilized
173
Id. at 285.
Professor Fishman does not agree with this criticism of Knotts. See
Fishman, supra note 160, at 325. He notes:
Surveillance of one's location and surveillance of one's words differ, not
merely in degree, but in kind. Under most circumstances, a person's
location and travel simply are not `private,' and surveillance, though
potentially offensive, does not intrude as deeply or as dangerously into
privacy and individual liberty as does surreptitious surveillance of what
one says to friends, relatives and other confidants. Thus, it is not at all
inconsistent for the Court to have held that electronic surveillance of
communications is a search subject to Fourth Amendment protection,
while also holding that electronic surveillance of public travel is not.
Fishman, supra note 160, at 325 (footnote omitted). While reasonable minds
might agree that the “location” surveillance in Knotts is not as intrusive as the
communication surveillance in Katz, my criticism of Knotts is not focused on the
degree or intrusiveness of the surveillance involved in that case. Rather, my point
is to highlight the contrasting analytical methods between Knotts and Katz. As
noted in the text, Knotts's analysis gives the police enormous latitude to monitor
the activities of individuals. In some cases, the surveillance will be quite intrusive,
as in the example of the lip-reading FBI agents who augment their sensory
faculties with electronic equipment. In other cases, the surveillance may be
insignificant, as Justice Stevens believed to be the case in Kyllo. See Kyllo v.
United States, 533 U.S. 27, 43 (2001) (Stevens, J., dissenting) (noting that “the
ordinary use of the senses might enable a neighbor or passerby to notice the heat
emanating from a building”); Kyllo, 533 U.S. at 45 (arguing that police “should not
have to avert their senses or their [sense-enhancing] equipment from detecting
emissions in the public domain,” particularly when “the countervailing privacy
interest is at best trivial”). In a third group of cases, reasonable minds might
disagree about the intrusiveness involved when government officers are free to
augment their sensory faculties with enhancement by scientific and technological
devices. Compare Smith v. Maryland, 442 U.S. 735, 741 (opinion of Blackmun, J.)
with Smith, 422 U.S. at 746-48 (opinion of Stewart, J., dissenting). In sum, the
problem with the Court's analysis in Knotts is that it proves too much. Under
Knotts's logic, the Fourth Amendment will be inapplicable if the government can
convince a judge that the information revealed by the technological or scientific
intrusion could have been detected by officers combining sense-enhancing
equipment with their ordinary human senses.
174
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other types of technological tools to gather information.
The third and final factor that Katz emphasized was that
“[o]ne who occupies [a phone booth], shuts the door behind
him, and pays the toll that permits him to place a call is
surely entitled to assume that the words he utters into the
mouthpiece will not be broadcast to the world.”175 Katz
explained that the warrantless wiretap violated “the privacy
upon which [Katz] justifiably relied while using the telephone
booth and thus constituted a `search an d seizure' within the
meaning of the Fourth Amendment.”176
This aspect of Katz is nearly impossible to administer. As
Professor LaFave comments, the “expectation” formula of
Katz does not produce “clarity where theretofore there had
been uncertainty. If anything, the exact opposite has
occurred.”177 The rest of the Katz opinion, as the above
discussion demonstrates, provides scant guidance on
explaining when other individuals can “justifiably rel[y]” on
the Fourth Amendment to protect them from warrantless
government surveillance.178 In sum, because it lacks any type
of principled norm, the expectations test, like the other two
factors that Katz emphasized, does not provide a substantive
model or neutral principle that protects Fourth Amendment
liberties.
175
Katz v. United States, 389 U.S. 347, 352 (1967).
Id. at 353.
1 L AF AVE, supra note 21, § 2.1(b) at 385.
178
See supra note 174 and accompanying text; see also, Kyllo, 533 U.S. at 34
(noting that Katz's expectations test “has often been criticized as circular, and
hence subjective and unpredictable”) (citations omitted); L AF AVE, supra note 21,
§ 2.1(b) at 386 (explaining that “[a]lthough Katz unquestionably expands the
coverage of the Fourth Amendment, even now—despite the intervening years
since Katz was handed down—it is impossible to state with precision the degree
of this expansion”); Gutterman, supra note 160, at 665 (noting that
“[g]overnment conduct could be insulated from [constitutional] review when the
precautions taken were not weighted sufficiently to earn privacy. The Katz
promise had sowed its own seeds of destruction.”) (footnote omitted); cf. J EFFREY
ROSEN, T HE UNWANTED GAZE: T HE DESTRUCTION OF P RIVACY IN AMERICA 63
(Random House 2000) (“[T]he real problem with the Supreme Court's test for
invasions of privacy is not empirical but conceptual. In many cases, people have
an objectively valid expectation of privacy that the Court, by judicial fiat, has
deemed unjustifiable.”).
176
177
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The Meaning of Katz
Because the three factors critical to the result in Katz
were meaningless or insignificant, it is not surprising that
Katz has been ineffective in protecting Fourth Amendment
interests in cases not involving wiretapping or electronic
bugging of private conversations. But the emptiness of these
factors was not the only problem with Katz. Another flaw in
Katz, although not immediately apparent in the Court's
opinion, was the fact that the Justices who joined the result in
Katz could not agree on its meaning. The inability of the
Justices who decided Katz to agree on the scope and impact of
their own decision diminished any expectation that Katz
could have a lasting impact on Fourth Amendment liberties.
Indeed, the discord over Katz, when combined with the
emptiness of its legal framework, only increased the chances
that future Justices would see Katz as a narrow precedent
regarding the Fourth Amendment's scope in a scientific and
technologically advanced society.
Although few would realize the point until much later,
the scope of Katz's holding was in doubt on the day the Court
rendered its decision. In his concurring opinion, Justice
White asserted that Katz left undisturbed a line of cases
dealing with informants and wired spies. 179 According to
Justice White, when a person speaks to another, the speaker
“takes all the risks ordinarily inherent in so doing, including
the risk that the man to whom he speaks will make public
what he has heard.”180 The Fourth Amendment affords no
protection against “unreliable (or law-abiding) associates.”181
A sensible extension of this rule, according to Justice White,
leads to the conclusion that a speaker also assumes the risk
“that his hearer, free to memorize what he hears for later
verbatim repetitions, is instead recording it or transmitting it
to another.”182 Katz, on the other hand, dealt with “an entirely
different situation” because Katz attempted to exclude
uninvited listeners and “spoke un der circumstances in which
a reasonable person would assume that uninvited ears were
not listening.”183
179
180
181
182
183
Katz, 389 U.S. at 363, n.* (White, J., concurring).
Id. (White, J., concurring).
Id.
Id.
Id.
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Justice White's comments sought to bolster the
“assumption of risk” analysis that supported On Lee. When
Katz was decided, no member of the Katz majority challenged
Justice White's interpretation of Katz's holding. Four years
later, however, an influential member of the Katz majority
challenged Justice White's understanding of Katz's impact on
the wired spy cases. Justice Harlan, the author of what later
became known as the “Katz analysis”184 or “Katz test,”185
disputed Justice White's interpretation of Katz in United
States v. White.186 On this occasion, however, Justice White's
views on Katz's meaning would prevail over the views of
Justice Harlan.
White reaffirmed On Lee's holding that governmental use
of a wired spy to record the conversations of an individual is
not a search under the Fourth Amendment. As noted earlier,
Justice White's plurality opinion in White relied upon the
assumption of risk theory to explain why an individual has no
constitutionally protected interests against government use of
wired informants. Not surprisingly, Justice White read Katz's
holding, as he did in his concurring opinion in Katz, as not
affecting the rationale supporting On Lee or Lopez.187 In
contrast, Justice Harlan's dissent in White argued that
subsequent cases had eroded the “doctrinal foundations” of
On Lee. According to Justice Harlan, Katz, in combination
with other rulings decided in the 1960's, not only expunged
the property-law doctrine that previously controlled the
results in search and seizure cases, it also cast serious doubt
on the continuing validity of cases like On Lee and Lopez.188
The reasoning in Katz, following closely on the heels of
Berger, signaled a heightened judicial awareness of the
dangers that technology posed to individual privacy. Indeed,
even without Katz, the Court had already changed direction
on the constitutionality of electronic surveillance.
184 Smith v. Maryland, 442 U.S. 735, 741 (1979) (referring to Justice Harlan's
concurrence in Katz which established a two-part test for determining when a
“search” occurred, as “the Katz analysis”).
185
Minnesota v. Carter, 525 U.S. 83, 97 (1998) (Scalia, J., concurring)
(commenting on “the Katz test (which has come to mean the test enunciated by
Justice Harlan's separate concurrence in Katz)”).
186
401 U.S. 745 (1971).
187 Justice White distinguished Katz by explaining that:
Katz involved no revelation to the Government by a party to
conversations with the defendant nor did the Court indicate in any way
that a defendant has a justifiable and constitutionally protected
expectation that person with whom he is conversing will not then or
later reveal the conversation to the police.”
White, 401 U.S. at 749 (plurality opinion).
188 Id. at 776-80 (Harlan, J., dissenting).
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Specifically, Justice Harlan noted that Berger “expressed
concern about scientific developments that have put within
the reach of the Government the private communication of
`anyone in almost any given situation,' [and] it left no doubt
that, as a general principle, electronic eavesdropping was an
invasion of privacy and that the Fourth Amendment
prohibited unsupervised `bugging.'”189 In Justice Harlan's
view, Katz was simply the concluding chapter of the Court's
new edition on the meaning of the Fourth Amendment.
Justices White and Harlan not only proffered different
views on Katz's specific holding, they also differed on Katz's
impact on Fourth Amendment theory. For Justice White,
Katz's impact was limited to overruling the trespass rule.
Katz did not affect the assumption of risk theory of prior
cases, nor did it represent a shift in judicial analysis in
determining the Fourth Amendment's reach. 190 Justice
Harlan, on the other hand, questioned the compatibility of
“risk analysis” and “expectations” theory with the Court's
contemporary approach to defining the Fourth Amendment's
reach. Although his opinions in Lopez and Katz were crucial
to the development of each of these legal theories, Justice
Harlan now believed that risk analysis and expectations
theory was neither consistent with the holding of Katz nor
compatible with the central purpose of the Amendment. 191
Justice Harlan's comments seem to recognize that the analysis
o f K a t z— r e l y i n g a s i t d o e s o n t h e i n d i v i d u a l ' s
expectations—was an inadequate model for defining the
Fourth Amendment's reach in an age of technological
innovation. For Harlan, merely describing the risks a person
assumes or subjective expectations he holds was a flawed
model for identifying the Fourth Amendment's reach. The
“critical question” was whether the Court “should impose on
189
Id. at 779 (Harlan, J., dissenting) (quoting Berger v. New York, 388 U.S.
41, 47 (1967)).
190
Justice White saw no constitutional difference between wired and unwired
spies.
Given the possibility or probability that one of his colleagues is
cooperating with the police, it is only speculation to assert that the
defendant's utterances would be substantially different or his sense of
security any less if he also thought it possible that the suspected
colleague is wired for sound.
White, 401 U.S. at 752 (plurality opinion). According to Justice White, government
use of wired and unwired informants “is ruled by fluid concepts of
`reasonableness.'” Id. at 753 (plurality opinion).
191
See id. at 786 (Harlan, J., dissenting).
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our citizens the risks of the electronic listener or observer
without at least the protection of a warrant requirement.”192
Unlike Justice White, who thought that a traditional
“reasonableness” model was capable of assessing the
constitutionality of electronic surveillance, Justice Harlan
appeared to be saying that the Court must go further than
simply asking what constitutes reasonable police conduct.
Instead, the Justices must examine “the realm of values
protected by the Fourth Amendment.”193
A second illustration of the Court's internal discord over
the meaning of Katz occurred in the term following Katz. In
Desist v. United States,194 the Court had to decide whether
Katz's holding should be given retrospective application.
When Desist was decided, one of the criteria for determining
whether a new constitutional ruling would be given
retroactive affect focused on “the extent of the reliance by law
enforcement authorities on the old standards.”195 With this
concern in mind, the defendants in Desist argued that Katz
“merely confirmed the previous demise of obsolete decisions
enunciating the distinction between `trespassory' searches
and those in which there was no physical penetration of the
protected premises.”196 The Desist Court, however, concluded
that this argument “misconstrues our opinion in Katz.”197
According to Justice Stewart, the author of Desist, on the day
the Court decided Katz, “the assumption persisted that
electronic surveillance did not offend the Constitution unless
there was an `actual intrusion into a constitutionally
protected area.'” 198 Justice Stewart conceded that decisions
which preceded K a t z “ m a y h a v e r e f l e c t e d g r o w i n g
dissatisfaction with the traditional tests of the constitutional
192
Id.
Id. at 778; see also id. at 786-87 (arguing that the Court must assess “the
nature of a particular [police] practice and the likely extent of its impact on the
individual's sense of security balanced against the utility of the conduct as a
technique of law enforcement. For those more extensive intrusions that
significantly jeopardize the sense of security which is the paramount concern of
Fourth Amendment liberties, I am of the view that more than self-restraint by
law enforcement officials is required and at the least warrants should be
necessary.”) (citations omitted).
194
394 U.S. 244 (1969).
195 Desist, 394 U.S. at 249 (quoting Stovall v. Denno, 388 U.S. 293, 297
(1967)). The other two criteria were: “the purpose to be served by the new
standards” and “the effect on the administration of justice of a retroactive
application of the new standards.” Id. The legal standards for retroactive
application of Supreme Court precedents have changed since Desist was decided.
See KAMISAR ET AL, supra note 18, at 41-47.
196 Desist, 394 U.S. at 247 (citations omitted).
197
Id.
198 Id. at 248.
193
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validity of electronic surveillance,” but he noted that the
Court had never overruled those tests. 199 Thus, while the
result in Katz “may have been foreshadowed, it was a clear
break with the past.”200 Accordingly, Desist ruled that Katz
would have only prospective application.
This understanding of Katz baffled Justice Fortas, who
had joined Justice Stewart's majority opinion in Katz itself.
Justice Fortas was certain that the trespass rule was dead
long before the Katz decision.201 But another aspect of the
Court's failure to apply Katz retrospectively troubled Justice
Fortas. He noted that the “vitality of our Constitution
depends upon conceptual faithfulness and not merely
decisional obedience” that law enforcement officials and lower
courts afford to the Court's precedents. 202 By giving Katz only
prospective application, the Desist Court sent two related
messages to police officials and lower court judges. One
message encouraged police officials “who honor the
Constitution's mandate only where acceptable to them or
compelled by the precise and inescapable specifics of a
decision of this Court.”203 The second message that Desist sent
was more pointed. Prospective application of Katz awarded
dunce caps to those law enforcement officers, courts, and public
officials who do not merely stand by until an inevitable decree
issues from this Court, specifically articulating that which is
clearly immanent in the fulfillment of the Constitution, but
who generously apply the mandates of the Constitution as the
developing case law elucidates them.204
Justice Fortas's comments on the importance of
“conceptual faithfulness” to Supreme Court precedents help
to identify a basic problem with Katz. Justice Fortas's dissent
in Desist was a veiled criticism of law enforcement officers
and judges who took a narrow view of the Court's pre-Katz
Id.
Id.
201 Using somewhat colorful language, Justice Fortas stated:
Katz is not responsible for killing Olmstead. Prior cases had left the
physical-trespass requirement of Olmstead virtually lifeless and merely
awaiting the death certificate that Katz gave it. They demonstrated to all
who were willing to receive the message that Olmstead would not shield
eavesdropping because it took place outside the physical property line.
Desist, 394 U.S. at 275 (Fortas, J., dissenting) (citations omitted).
202
Id. at 277.
203 Id.
204
Id.
199
200
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cases. Some of the conservative Justices of the Burger and
Rehnquist Courts have encountered similar criticism for their
application of Katz.205 But before police officers, lower court
judges, and even Supreme Court Justices can be expected to
honor the “conceptual faithfulness” of a Court ruling, they
h ave to know what that ruling requires of them. The problem
with Katz is that it was so lacking in substance and subject to
judicial manipulation that it could mean anything to anyone.
The debate between Justices White and Harlan in White
and Justices Stewart and Fortas in Desist illustrate the
problem that occurs when the Justices who decide a
“landmark” case like Katz disagree among themselves. For
example, when the Justices cannot agree whether a case
fundamentally altered the “rules of the game” regarding the
constitutionality of electronic surveillance,206 that case is an
unlikely protector of civil liberties in future cases involving
technological and scientific innovations that threaten Fourth
Amendment rights. Similarly, if within a year's time, the
Justices who announce a ruling that many legal scholars
characterize as a revolutionary alteration of the protection
provided by the Fourth Amendment are deeply divided over
whether that ruling “was a clear break with the past,” then
that ruling should not be expected to generate consensus
among future Justices regarding its meaning in other
constitutional contexts. Despite the apparent consensus
among the Justices when they decided Katz, it soon became
obvious that the same Justices who participated in the Katz
205
See, e.g., Minnesota v. Carter, 525 U.S. 83, 110-11 (1998) (Ginsburg, J.,
dissenting) (“The Court's decision in this case veers sharply from the path
marked in Katz.”); Florida v. Riley, 488 U.S. 445, 456 (1989) (Brennan, J.,
dissenting) (“The opinion for a plurality of the Court reads almost as if [Katz]
had never been decided.”); id. at 457 (plurality's position that helicopter
surveillance of a backyard is not a search “ignores the very essence of Katz”);
California v. Ciraolo, 476 U.S. 207, 216 (1985) (Powell, J., dissenting) (asserting
that the Court “departs significantly from the standard developed in Katz”);
Oliver v. United States, 466 U.S. 170, 188 (1984) (Marshall, J., dissenting) (“The
Court's contention that, because a field is not a house or effect, it is not covered
by the Fourth Amendment is inconsistent with th[e] [Katz] line of cases and
with the understanding of the nature of constitutional adjudication from which
it derives.”) (footnote omitted).
206
Compare United States v. White, 401 U.S. 745, 750 (1971) (plurality
opinion of White, J.) (“We see no indication in Katz that the Court meant to
disturb [the “risk analysis” theory] or to disturb the result reached in the On Lee
case, nor are we now inclined to overturn this view of the Fourth
Amendment.”) (footnote omitted), with White, 401 U.S. at 780 (opinion of
Harlan, J., dissenting) (stating that Katz “added no new dimension to the law. At
most it was a formal dispatch of Olmstead and the notion that such problems
may usefully be resolved in the light of trespass doctrine, and, of course, it freed
from speculation what was already evident, that On Lee was completely open to
question.”).
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decision could not agree on fundamental
ruling. When this lack of consensus over the
is combined with the emptiness of the legal
announced, it is not surprising to find that
poor guardian of Fourth Amendment rights.
93
aspects of that
meaning of Katz
norms that Katz
Katz has been a
III. WHAT IMPACT WILL KYLLO HAVE?
A. Kyllo's Impact on Earlier Cases Limiting the
Scope of the Fourth Amendment
The above discussion described the similarities of Katz
and Kyllo, and argued that Katz has been a weak protector of
Fourth Amendment rights. Kyllo's impact on search and
seizure interests, of course, is uncertain at this point. I
suspect, however, that Kyllo, like Katz, is unlikely to prevent
the use of technology to monitor and reveal information
helpful to law enforcement officials. One reason why Kyllo's
impact may be blunted is because the Court may be unwilling
to follow the implications of Kyllo's holding in future cases.
Consider, for example, a couple of precedents that seem
undermined by Kyllo's logic.
When explaining why thermal imaging constituted a
search, Justice Scalia seemed annoyed with Justice Stevens's
numerous statements that thermal imaging did not reveal
information regarding the interior of the home. In Scalia's
view, “a thermal imager reveals the relative heat of various
rooms in the home.”207 Although that information was not
“particularly private or important,” there was no basis for
concluding it is not “information regarding the interior of the
home.”208 Justice Scalia also curtly dismissed Justice Stevens's
comparison of thermal imagining to what a passerby might be
able to observe by using ordinary human senses. 209 Justice
Scalia noted that the dissent's comparison was “quite
207
Kyllo v. United States, 533 U.S. 27, 35, n.2 (2001).
Kyllo, 533 U.S. at 35 n.2.
209
According to Justice Stevens, “any member of the public might notice that
one part of a house is warmer than another part or a nearby building if, for
example, rainwater evaporates or snow melts at different rates across its
surfaces.” Id. at 43 (Stevens, J., dissenting). Justice Stevens's logic is reminiscent
of Chief Justice Burger's analysis in Ciraolo. In Ciraolo, Chief Justice Burger
concluded that police use of an airplane to observe the defendant's backyard
curtilage was not a search because “[a]ny member of the public flying in this
airspace who glanced down could have seen everything that these officers
observed.” Ciraolo v. California, 476 U.S. 207, 213-14 (1985).
208
93
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irrelevant” because “[t]he fact that equivalent information
could sometimes be obtained by other means does not make
lawful the use of means that violate the Fourth
Amendment.”210
Justice Scalia's conclusion that thermal imaging is a
search is more convincing than Justice Stevens's contrary
judgment. But if Justice Scalia is correct to say that thermal
imaging is a search because it reveals information regarding
the interior of the home, why isn't a police pen
register—which also reveals information regarding the
interior of a home, to wit: the telephone numbers dialed-a
search? As noted earlier, Smith v. Maryland held that a pen
register was not a search.211 One might try to distinguish
Smith by arguing that a pen register does not involve a police
intrusion into the home, but a thermal imager does not invade
the home either. Both the government and Justice Stevens
emphasized that because a thermal imager only detects heat
that radiates from the external surface of a home, it did not
trigger Fourth Amendment protection, a point that Justice
Scalia did not contest. 212
Alternatively, one might try to distinguish Smith by
arguing that a homeowner assumes the risk that the police
would learn the numbers he dialed from his home because
those numbers were revealed to the telephone company,
which, in turn, was free to provide the numbers to the police.
Although the Smith Court accepted that rationale, it is not a
210
Kyllo, 533 U.S. at 35, n.2. Interestingly, Justice Scalia's rebuttal to Justice
Stevens's argument sounded more like Anthony Amsterdam than Warren
Burger. In his seminal article on the Fourth Amendment, Professor Amsterdam
explained why the availability of information from unofficial sources does not
give the government carte blanche to utilize police methods to obtain that same
information. See Amsterdam, supra note 23 at 406-07 (“Every person who parks
his or her car on a side street in Greenwich Village voluntarily runs the risk
that it will be burglarized—a risk, I should add as one who has lived in
Greenwich Village, that is very much higher than the risk of betrayal by your
friends even if you happen to choose your friends exclusively from a circle of
Machiavellian monsters. Does that mean that government agents can break into
your parked car uncontrolled by the fourth amendment? Or pay the junkies to
break into it?”).
211
Smith v. Maryland, 442 U.S. 735, 741 (1979).
212 See Kyllo, 533 U.S. at 41 (noting that the police observations “were made
with a fairly primitive thermal imager that gathered data exposed on the outside
of petitioner's home but did not invade any constitutionally protected interest in
privacy”) (Stevens, J., dissenting) (footnote omitted); id. at 44 (“equipment in this
case did not penetrate the walls of petitioner's home, and while it did pick up
`details of the home' that were exposed to the public, it did not obtain `any
information regarding the interior of the home.'”); Brief for the United States at
19, Kyllo (No. 99-8508) (“the imager did not literally or figuratively penetrate the
walls of petitioner's house and perceive private activities inside”); id. at 26
(stating that the thermal imager detected “only heat radiating from the external
surface of the house”).
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convincing legal theory to measure the scope of the Fourth
Amendment. 213 But even if one is persuaded by risk theory,
that logic is equally applicable to Danny Kyllo's case. Indeed,
the court of appeals, the Solicitor General's office, and Justice
Stevens all endorsed the notion that Kyllo assumed the risk
that someone located outside might detect the heat emanating
from his home.214 According to Justice Stevens, society is
unlikely to suffer from “a rule requiring the rare homeowner
who both intends to engage in uncommon activities that
produce extraordinary amounts of heat, and wishes to conceal
that production from outsiders, to make sure that the
surrounding area is well insulated.”215
Moreover there are additional similarities between a
thermal imager and a pen register. In Kyllo, Justice Scalia
explained that a search occurs whenever police use “sense-
213
See e.g., United States v. White, 401 U.S. 745, 786 (1971) (Harlan, J.,
dissenting) (noting that the “risk analysis” model of prior cases “lead to the
substitution of words for analysis. The analysis must, in my view, transcend the
search for subjective expectations or legal attribution of assumptions of risk.
Our expectations, and the risks we assume, are in large part reflections of laws
that translate into rules the customs and values of the past and present.”);
Slobogin, supra note 28, at 1417 (noting that assumption of risk theory is
“vacuous” in Kyllo: “The most pertinent illustration of that fact is that until the
Supreme Court decision in Kyllo, in most jurisdictions we `assumed the risk'
that police subject the interior of our houses to thermal imaging without
obtaining a warrant or developing any level of suspicion that evidence of a crime
would be discovered.”); cf. Amsterdam, supra note 23, at 470, n.492 (“The
question is whether the [F]ourth [A]mendment regulates the activity of the
police in dispatching spies to insinuate themselves into people's confidences and
homes . . . . If it does not, then the government may unleash its spies on any of
us, criminals or not; and talk about `criminals' assuming the risks means that
we all assume the risks.”); Baldwin v. United States 450 U.S. 1045 (1981)
(Marshall, J., dissenting). In Baldwin, the Court denied certiorari to review the
claim that a search occurred when an undercover agent, who had obtained a
position as the defendant's handyman and chauffeur, obtained samples of
cocaine from the defendant's home. Baldwin, 405 U.S. at 1045. Justice Marshall
complained that under the logic of the lower court, “the Government need
never satisfy the probable-cause and warrant requirements of the Fourth
Amendment if, by disguising its officers as repairmen, babysitters, neighbors,
maids, and the like, it is able to gain entry into an individual's home by ruse
rather than force in order to conduct a search.” Id. at 1049 (Marshall, J.,
dissenting) (footnote omitted).
214
See United States v. Kyllo, 190 F. 3d 1041, 1046 (9th Cir. 1998) (explaining
that Kyllo “took no affirmative action to conceal the waste heat emissions
created by the heat lamps needed for a success indoor grow”); Brief for United
States at 25, Kyllo (No. 99-8508) (“When a government investigator is in a public
place and uses technology to observe an area exposed to the public; it does not
constitute a search, provided that technology does not directly detect private
activity (or other private details) occurring in a private area.”); Kyllo, 533 U.S. at
45 (Stevens, J., dissenting).
215
Kyllo, 533 U.S. at 45 (Stevens, J., dissenting).
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enhancing technology [to obtain] any information regarding
the interior of the home that could not otherwise have been
obtained without physical `intrusion into a constitutionally
protected area.'”216 Under this standard, a pen register is also
a search because it is technology that enables the police to
obtain information regarding the interior of the home that
could not otherwise have been obtained without physical
intrusion into the home. The pen register reveals the numbers
dialed on a home telephone that would otherwise be
unavailable unless officers were inside the home to observe
the dialing. 217 Furthermore, a pen register is not a device
generally used by the public.218 And finally, the pen register
reveals details about the home. Indeed, a pen register
provides more revealing and intimate details about the home
than a thermal imager. While a thermal imager measures
relative amounts of heat that may be escaping the home, a pen
register identifies the people and organizations called by a
h omeowner, and thus reveals “the most intimate details of a
person's life.”219
In sum, the legal analysis that dictates the conclusion that
thermal imaging is a search also compels the conclusion that a
pen register is a search. Despite the parallels between a
thermal imager and a pen register, Justice Scalia made no
effort to reconcile Kyllo's holding with Smith v. Maryland. 220
This is not to suggest that the Justices comprising the Kyllo
majority are ready to reconsider or overrule Smith. If forced
to revisit the constitutionality of pen registers, it is highly
216
Id. at 34 (citation omitted).
Of course, one might argue that because the police could subpoena a
person's telephone records and obtain information about the numbers dialed
within a home, the Fourth Amendment does not bar the police from obtaining
that same information pursuant to a pen register. Under Kyllo's analysis,
however, a pen register does not become a non-search simply because the
information revealed by the pen register is available from other sources. Id. at
35, n.2 (“The fact that equivalent information could sometimes be obtained by
other means does not make lawful the use of means that violate the Fourth
Amendment.”).
218 See Carrie L. Groskopf, If It Ain't Broke, Don't Fix It: The Supreme
Court's Unnecessary Departure From Precedent in Kyllo v. United States, 52
DEP AUL L. REV. 201, 243 (2002) (“A pen register, in fact, is a device geared
specifically for law enforcement purposes, and not for individual use. It would
seem then, that under the reasoning of Kyllo, because a pen register is
arguably not considered to be commonly available to the general public, the
employment of a pen register should be unconstitutional.”) (footnote omitted).
219
Smith v. Maryland, 442 U.S. 735, 748 (1979) (Stewart, J., dissenting).
220 While Justice Scalia did not attempt to reconcile his logic with Smith's
holding, Justice Stevens argued that technological equipment that disclosed “only
the relative volume of sound leaving [a telephone] booth, which presumably was
discernible in the public domain,” would be constitutional under Smith's holding.
Kyllo, 533 U.S. at 49-50, n.6 (Stevens, J., dissenting).
217
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likely that the current Court would reaffirm Smith's holding
notwithstanding the result in Kyllo. That said, Justice Scalia's
silence regarding Smith is worth mentioning.
Notwithstanding the shared traits between a thermal imager
and a pen register, Justice Scalia's analysis in Kyllo proceeds
forward oblivious to the tension between Kyllo's holding that
thermal imaging is a search and Smith's ruling that a pen
register is not a search. Conceivably, Justice Scalia did not
notice the tension between Kyllo's holding and Smith's
holding, although that is an unlikely scenario since a number
of law professors immediately recognized the tension. 221
Perhaps, Justice Scalia's silence was compelled by the need to
maintain the vote of one or more members of the Kyllo
majority who were unwilling to join an opinion that cast doubt
on the result in Smith. Whatever the explanation, at some
point in the future, the Court may be forced to address the
conflict between Kyllo and Smith. When that happens, my
prediction is that the Court will confine Kyllo's reasoning to
its special facts, reaffirm Smith's holding, and find that the
Fourth Amendment presents no obstacles to using technology
that is the functional equivalent of a pen register.222
Another precedent that Kyllo's reasoning undermines is
221 See e.g., Joshua Dressler, posting on Jan. 17, 2002 (copy on file with
author) (“Of course, after Kyllo last year, one can seriously question whether
Smith v. Maryland can be justified on any reasonable basis of principle. If a
thermal imager used outside a house to detect heat levels inside a house is
unconstitutional (in the absence of a warrant), one wonders why the rule
should be different in the case of a pen register obtaining phone calling activities
inside.”). But cf. Norman M. Garland, posting on Jan. 17, 2002 (copy on file with
author) (“I think that [Kyllo] reaffirms the validity of the Smith case. Scalia, for
the majority, cites Smith to distinguish it from the case before it.”). I think that
Professor Garland places too much weight on Justice Scalia's citation of Smith.
Justice Scalia's sole reference to Smith occurs in Part II of his opinion which
describes the law concerning police activities that trigger Fourth Amendment
protection. As Professor Garland notes, Justice Scalia states that the Katz test
has been applied “in holding that it is not a search for the police to use a pen
register at the phone company to determine what numbers were dialed in a
private home, Smith v. Maryland, 442 U.S. 735, 743-744 (1979).” Kyllo, 533 U.S.
at 33. Scalia then explains that Kyllo “involves officers on a public street
engaged in more than naked-eye surveillance of a home,” and comments that
the Court has “previously reserved judgment as to how much technological
enhancement of ordinary perception from such a vantage point, if any, is too
much.” Id. Justice Scalia's standard of review is announced in Part III of his
opinion. See Id. at 34. After announcing that standard, Justice Scalia never
compares or contrasts the holding in Smith with the standard established in
Kyllo. Thus, rather than distinguish Smith's holding from the rule announced in
Kyllo, Justice Scalia is, at best, indifferent to Smith, and makes no effort to
reconcile his own reasoning with Smith's analysis and holding.
222
See infra notes 343-59 and accompanying text.
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United States v. Place.223 Place permitted police use of another
type of technology—albeit canine technology—that has
impacted Fourth Amendment rights. 224 Place held that a
canine sniff of luggage that discloses only the presence or
absence of narcotics is not a search.225 In his Kyllo dissent,
Justice Stevens complained that the Court's ru le would cover
devices that are designed to detect emissions coming from a
house.226 Justice Stevens sensibly noted Place's holding would
authorize “sense-enhancing equipment that identifies nothing
but illegal activity.” 227 According to Justice Stevens, Place's
holding has been diluted because use of a mechanical dog or
other type of technology directed at home that might detect
“the odor of deadly bacteria or chemicals for making a new
type of high explosive” would be illegal under Kyllo's
reasoning.228
Interestingly, Justice Scalia chose not to respond to
Justice Stevens's comments on the future viability of Place's
holding concerning technological devices that provide
information regarding the interior of a home. Justice Scalia's
silence on this point is even more perplexing than his refusal
to discuss Kyllo's impact on Smith's holding for two reasons.
First, the conflict between Kyllo and extending Place's
holding to cover technological devices that reveal information
about the inside of a home is even more striking than the
tension between Kyllo and Smith. A dog sniff, whether
mechanical or not, that detects the odor of contraband or
deadly bacteria coming from a home is easily covered by
Kyllo's rule that a search occurs whenever “sense-enhancing
technology [enables the police to obtain] any information
regarding the interior of [a] home that could not otherwise
have been obtained without physical `intrusion into [the
home].'”229 Second, when Kyllo was under review by the Court,
an influential federal court of appeals had already ruled that
462 U.S. 696 (1983).
Place, 462 U.S. at 707.
Id. In a rather casual manner, and without prompting a dissent, Place's
holding was extended to automobiles in Indianapolis v. Edmond, 531 U.S. 32, 40
(2000). Edmond ruled that a narcotics vehicle checkpoint was an unreasonable
seizure because its primary purpose was law enforcement related. Edmond, 531
U.S. at 48. As it did in Place, the Edmond Court reached out to decide the
constitutionality of a narcotics dog sniff of an automobile, even though that
issue was unrelated to the central issue before the Court. Id. at 40. Speaking
for the majority, Justice O'Connor, relying exclusively on Place, ruled that a
canine sniff of a car is not a search. Id.
226
Kyllo, 533 U.S. at 47 (Stevens, J., dissenting).
227 Id.
228
Id. at 48.
229 Id. at 34.
223
224
225
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Place's holding should not be extended to private homes. 230 It
would be surprising that the Court was unaware of this
development when deciding Kyllo.231
Moreover, several lower court judges have acknowledged
the conflict between Kyllo and Place.232 Although the lower
courts have reached different results on the constitutionality
of canine sniffs in various contexts, several judges have
commented that Kyllo “appears to run counter to the
analytical basis of the `dog sniff' rule.”233 My emphasis on the
tension between Kyllo and Place is not to predict that the
Kyllo majority is poised to overrule or reconsider Place.
Indeed, during the same Term that Kyllo was decided, the
Court unanimously held in Indianapolis v. Edmond234 that a
dog sniff of an automobile was not a search, and cited Place as
the controlling precedent. Of course, under the Court's
precedents, cars and containers found therein are not entitled
to the same privacy interests that are afforded to homes, 235
but luggage is normally entitled to more privacy than cars, 236
unless, of course, the luggage is found inside an automobile.237
United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985).
Professor LaFave's treatise gives prominent attention to Thomas. See
L AF AVE, supra note 21, § 2.2(f) at 459. LaFave also highlights that the validity of
Thomas's legal analysis was questioned in United States v. Colyer, 878 F.2d 469
(D.C. Cir. 1989), which ruled that a dog sniff of a roomette in a train was not a
search. See L AF AVE, supra note 21, § 2.2(f) at 460.
232 See, e.g. United States v. Richard, No. CRIM 01-20048-01, 2001 WL
1033421, at *6 n.4 (W.D. La., 2001); State v. Wiegand, 645 N.W. 2d 125, 130
(Minn. 2002); People v. Haley, 41 P.3d 666, 671 n.2 (Colo. 2001); State v.
Bergmann, 633 N.W.2d 328, 334 (Iowa 2001); State v. Miller, 647 N.W.2d 348,
355 n.2 (Wis. App. 2002) (Dykman, J. concurring).
233
Richard, 2001 WL 1033421, at *6 n.4. See also Wiegand, 645 N.W.2d at
138 (Page, J., concurring) (“I do not see a distinction between senseenhancement-by-technology and sense-enhancement-by canine.”); Haley, 41 P.3d
at 671 n.2 (“In our view, the logic of [Kyllo's] holding undercuts the
prosecution's argument that dog sniffs of the outside of an automobile to detect
the contents thereof do not fall within a reasonable expectation of privacy.”).
234 531 U.S. 32, 40 (2000).
235
See California v. Carney, 471 U.S. 386 (1985). Chief Justice Burger's
opinion in Carney held that the “automobile exception”—which permits
warrantless searches of cars provided there is probable cause—controlled the
search of a motor-home that was found in a public parking lot. Carney, 471 U.S.
at 390-94.
236 See United States v. Chadwick, 433 U.S. 1 (1977). Chadwick held that a
warrantless search of a footlocker was unconstitutional, even though there was
probable cause to believe it contained contraband. Chadwick, 433 U.S. at 15-16.
In an opinion by Chief Justice Burger, the Court pointedly rejected the
government's argument that the automobile exception should equally apply to
movable containers, and that the warrant requirement should be confined to
searches of homes and other areas of “core” privacy interests. Id. at 11-13.
237
A description of the intricacies and absurdities of the Court's automobile
230
231
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My point is not to predict the demise of Place. Rather, my
contention is that Kyllo undercuts the argument that a dog
sniff of an apartment or a roomette on a train is not a search
under the Fourth Amendment. Like a thermal imager, a
canine sniff is a law enforcement device that allows the police
to obtain information regarding the interior of a home or
other protected area that could not otherwise have been
obtained without a physical intrusion.238 Of course, dogs, more
so than pen registers, electronic beepers and airplanes are
generally available to the public,239 which may make Kyllo's
reasoning inapplicable to canine sniffs. 240 As others have
search doctrine is beyond the scope of this article. Cases such as Wyoming v.
Houghton, 526 U.S. 295 (1999), California v. Acevedo, 500 U.S. 565 (1991), and
United States v. Ross, 456 U.S. 798 (1982) are examples of the Court's most
recent pronouncements in this area.
238
Cf. Thomas K. Clancy, Coping with Technological Change: Kyllo and the
Proper Analytical Structure to Measure The Scope of Fourth Amendment Rights,
72 MISS. L.J. 525, 557 (2002) (asserting that the “logic of [Kyllo's] analysis surely
must apply to all technological devices that detect information about the interior
of the home”). At least one lower court has intimated that Kyllo does not affect
canine sniffs because a dog sniff is not “technology” within the meaning of the
Kyllo's holding. See Wiegand, 645 N.W.2d at 130 n.3. In Wiegand, the Minnesota
Supreme Court distinguished the facts involved there, namely, a dog sniff of a
car, by stating: “We are not faced with the issue of a dog sniff around a home,
nor are we faced with an investigative technique involving a piece of technology
with the potential for dramatic technological advancements.” Id.; see also Haley,
41 P.3d at 677-78 (Kourlis, J., dissenting) (rejecting the majority's argument that
Kyllo undermines Place's logic: “A dog sniff is not a technological advancement
that invites the same sort of concern [present in Kyllo].). That conclusion misses
the point of Kyllo. Justice Scalia specifically noted that the Court had “reserved
judgment as to how much technological enhancement of ordinary perception
from [a public] vantage point, if any, is too much.” Kyllo v. United States, 533
U.S. 27, 33 (2001). Canine sniffs undoubtedly enhance the ordinary sensory
faculties of police officers. In fact, police “use of a dog is not a mere
improvement of their sense of smell, as ordinary eye glasses improve vision, but
is a significant enhancement accomplished by a different, and far superior,
sensory instrument.” United States v. Thomas, 757 F.2d 1359, 1367 (2d Cir.
1985). While it is imaginable that a police officer, using her ordinary senses,
might be able to discern the same information that a thermal imager reveals,
see Kyllo, 533 U.S. at 43 (Stevens, J., dissenting) (“[T]he ordinary use of the
senses might enable a neighbor or passerby to notice the heat emanating from a
building, particularly if it is vented, as was the case here.”), the dog sniff does
what no ordinary person can do. See Harris, supra note 119, at 24 n.137
(“Although both man and dog can smell, the dog's nose was not simply a way to
enhance what the human at the end of the leash could do. Rather, the canine
nose is so much better—more sensitive and more accurate—than its human
counterpart that it simply could not be said to replace it.”).
239 At least one state supreme court justice, however, has stated that a
contraband sniffing dog should not be considered technology in general public
use. See Wiegand, 645 N.W.2d at 138 (Page, J., concurring specially) (“In this
case, the sense-enhancing dog sniff, not in general public use, obtained
information regarding the interior of the vehicle. . . . ”) (emphasis added).
240
Whether the “general public use” rule is part of Kyllo's holding is
uncertain. “It is worth noting that the Kyllo majority never firmly adopted the
general public use doctrine. In a footnote, it stated that general public use `may'
be a factor in the search analysis, and intimated it might `reexamine' this factor
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already noted, however, whether a particular device is in
general public use should have no impact on Fourth
Amendment analysis. 241 House burglars are prevalent too, but
because I run the risk that my home may be burglarized does
not mean that a warrantless police invasion of my house is not
a search. Likewise, if technology gives the government access
that is the functional equivalent of physical presence in my
home, the general availability of that technology should not
make a differen ce when deciding whether the government's
use of that technology constitutes a search. A dog sniff is a
search because it provides the functional equivalent of actual
presence in the area being targeted.
Sooner or later, the Court will have the opportunity to
address the conflict between Kyllo and Place. When that
occasion arises, my prediction is the Court will give Kyllo a
narrow reading and extend Place's holding to authorize dog
sniffs of private residences. 242 If my guess is correct, a major
in the future.” Slobogin, supra note 28, at 1432 n.179 (citing Kyllo, 533 U.S. at
39 n.6).
241 Justice Stevens correctly asserted that a “general public use” rule is
“perverse because it seems likely that the threat to privacy will grow, rather
than recede, as the use of intrusive equipment become more readily available.”
Kyllo, 533 U.S. at 47 (Stevens, J., dissenting). For a compelling critique of the
“general public use” factor apparently established in Kyllo, see Slobogin, supra
note 28. In a pre-Kyllo article, Professor David Harris also pointed out the flaws
in having the scope of the Fourth Amendment turn on what technology is
generally available to the public. Harris, supra note 119, at 23 (noting that the
“type of technology the public can possess may change with surprising speed.
Worse, the Court's reasoning implies that citizens somehow assume the risk of
being observed by whatever technology the government can muster for its
crime-fighting efforts.”).
242 The Court will probably distinguish Kyllo in this context by explaining that
a dog sniff only detects “the presence or absence of narcotics, a contraband item.
Thus, despite the fact that the sniff tells the authorities something about the
contents of the [home], the information obtained is limited.” Place, 462 U.S. at
707. In contrast, the information disclosed by a thermal imager is not limited to
detecting contraband. A recent lower court holding supports my prediction. See
Porter v. Texas, No. 14-01-0177-CR to 14-01-0179-CR, 2002 WL 31008148 (Tex.
App. Sept. 5, 2002). Porter held that a dog sniff of a home is not a search.
Porter, 2002 WL 31008148 at *3. The Porter court explained that a dog sniff only
discloses whether or not contraband is present and that a person does not have
a legitimate expectation of privacy in possessing contraband. Id. See also, George
M. Dery III, The Loss of Privacy Is Just a Heartbeat Away: An Exploration of
Government Heartbeat Detection Technology and Its Impact on Fourth
Amendment Protections, 7 WM . & MARY BILL RTS. J. 401, 412-13 (1999) (noting
that the rule emerging from Place and Jacobsen is that if officials utilize devices
that are “so precise as to identify nothing but illegally-possessed items, then the
surveillance did not constitute a search”); Simmons, supra note 120, at 1352,
n.208 (“[S]ince the Court in Jacobsen essentially held that there is no legitimate
privacy interest in possessing illegal substances, the Court could easily
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element of Kyllo's framework will be diluted and the Court
will have, literally and figuratively, “opened the doors” of
people's homes to various types of technological devices that
can selectively identify emissions coming from a home.243
In sum, Kyllo's impact on future Fourth Amendment
doctrine may be limited because Justice Scalia's opinion
conflicts with key aspects of search and seizure law that
currently permit technological and other sense-enhancing
instruments to be used to gather information about “the most
intimate details of a person's life.”244 Unless the Court is
prepared to overrule (or severely limit) cases like Smith v.
Maryland and United States v. Place (and there is no hint in
Kyllo that the Court is ready to do this), the “right”
announced in Kyllo will most likely be confined to a privilege
against the use of a thermal imager directed at one's home.245
harmonize the Kyllo test with the Place doctrine by confirming that Kyllo only
applies to areas, activities and items in which an individual has a legitimate
expectation of privacy. The specific language used in Kyllo already implies this,
since it limits the test to `details of the home,' which clearly deserve
constitutional protection.”); cf. Michael Adler, Cyberspace, General Searches, and
Digital Contraband: The Fourth Amendment and the Net-Wide Search, 105
YALE L. J. 1093, 1098 (1996) (considering the Fourth Amendment implications of
a “perfect search”—a computer program that would scan a hard drive and
“report only the presence or absence of an exact copy of a certain piece of illegal
modified software,” and would “ignore everything else on the disk, no matter
how blatantly illegal—or sensationally intriguing—a human investigator might
find that information.”).
243 Cf. Kyllo, 533 U.S. at 45 (Stevens, J., dissenting) (“[P]ublic officials should
not have to avert their senses or their equipment from detecting emissions in
the public domain such as excessive heat, traces of smoke, suspicious odors,
odorless gases, airborne particulates, or radioactive emissions, any of which
could identify hazards to the community.”).
244 Smith v. Maryland, 442 U.S. 735, 748 (1979) (Stewart, J., dissenting).
245
A few lower courts have already hinted that Kyllo's holding does not
extend to the use of a thermal imager to scan premises other than the home,
such as commercial premises. See United States v. Elkins, 300 F.3d 638, 646 (6th
Cir. 2002) (“While Kyllo broadly protects homes against warrantless thermal
imaging, the case before us involves the use of a thermal image to scan the
Elkinses' commercial buildings.”) (emphasis added); State v. Mordowanec, 788
A.2d 54 (Conn. 2002) (“The Kyllo decision did not address the question of
whether a search warrant would be required to conduct a thermal imaging scan
of premises other than a home, such as a commercial property. The court
emphasized, however, the heightened expectation of privacy in one's home and
distinguished that heightened expectation from the lesser expectation of privacy
in a commercial property.”). Although these cases did not resolve the
constitutional issue at stake, they surely indicate a reluctance to extend Kyllo's
reach beyond a private home.
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The second reason to question Kyllo's impact on future
cases focuses not on technology or scientific innovation, but on
old-fashion Fourth Amendment doctrine. As noted earlier,
Justice Scalia's opinion stressed the importance of bright-line
rules, which provide guidance to police officers and judges
who must follow and apply the Court's search and seizure
doctrine. According to Justice Scalia, a clear constitutional
rule was vital in Kyllo because “the Fourth Amendment draws
`a firm line at the entrance to the house.' That line, we think,
must be not only firm but also bright—which requires clear
specification of those methods of surveillance that require a
warrant.”246 Justice Stevens' dissent ridiculed the quality and
clarity of Justice Scalia's per se rule, describing it as both “far
too broad” and “too narrow,” depending on the context. 247 To
the surprise of many Court-watchers, Justice Stevens
preferred giving politicians “an unimpeded opportunity” to
resolve future developments concerning technology and
Fourth Amendment rights, “rather than to shackle them with
prematurely devised constitutional restraints.”248
The important point here is not deciding who makes the
better argument on the need for bright-line rules in the
context of thermal imaging, but rather that Justice Scalia's
conclusion on the need for per se rules is not likely to change
or effect future Fourth Amendment doctrine, no matter how
persuasive his arguments may hav e been in Kyllo. The Court's
zigzag approach on the appropriateness of bright-lines in
search and seizure cases is notorious. 249 There is no neutral
Kyllo, 533 U.S. at 40 (citation omitted).
As noted above, see supra notes 226-28 and accompanying text, Justice
Stevens asserted that Kyllo's rule was too broad because it would “embrace
potential mechanical substitutes for dogs trained to react when they sniff
narcotics,” which would undermine the result and reasoning in Place. Kyllo, 533
U.S. at 47 (Stevens, J., dissenting). Justice Stevens also contended that Kyllo's
rule was unnecessarily broad because it covers any information regarding the
interior of a home. Id. “If it takes sensitive equipment to detect an odor that
identifies criminal conduct and nothing else, the fact that the odor emanates
from the interior of a home should not provide it with constitutional protection.”
Id. at 48. At the same time, Justice Stevens criticized Kyllo's holding as being
too narrow.
Clearly, a rule that is designed to protect individuals from the overly
intrusive use of sense-enhancing equipment should not be limited to a
home. If such equipment did provide its user with the functional
equivalent of access to a private place—such as, for example, the
telephone booth involved in Katz, or an office building—then the rule
should apply to such an area as well as to the home.
Id. at 48-49 (Stevens, J., dissenting).
248
Id. at 51.
249 See generally, Albert W. Alschuler, Bright Line Fever and the Fourth
Amendment, 45 U. P ITT. L. REV. 227 (1984); Wayne R. LaFave, The Fourth
Amendment In An Imperfect World: On Drawing “Bright Lines” and “Good
246
247
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principle explaining the Court's willingness to use (or not use)
bright-line rules. “[B]right lines will be applied when the
Court decides to apply them.”250 There is no reason to think
that Kyllo will alter this situation. Justice Scalia's triumph in
Kyllo in persuading a majority of his colleagues on the
benefits of bright-line rules will likely be a temporary victory.
The Court's most recent cases demonstrate how unlikely
it is that Kyllo's preference for bright-line rules will have a
lasting impact. In the same Term in which Kyllo adopted a per
se rule for determining whether thermal imaging was a
search, the Court adopted a balancing analysis rather than a
per se rule in another case involving the scope of protection
the Fourth Amendment provides for the home. Decided four
months prior to Kyllo, Illinois v. McArthur251 concerned
whether police, who had probable cause that marijuana was in
a home, could seize the home and prevent the homeowner
from entering his premises unaccompanied by an officer for
approximately two hours while a search warrant was being
obtained. 252 The Court concluded that the seizure was
lawful. 253
Two police officers accompanied Charles McArthur's wife
when she went to his trailer-home to remove her
belongings. 254 When the wife and the officers arrived,
McArthur was inside his home.255 The officers remained
outside while the wife retrieved her possessions. 256 After
gathering her belongings, the wife informed the officers that
McArthur had concealed “`some dope underneath the
couch.'”257 The officers then knocked on the door and
requested permission to search the home.258 McArthur denied
the request while standing outside his trailer.259 The officer in
Faith”, 43 U. P ITT. L. REV. 307 (1982); cf. Tracey Maclin, The Fourth
Amendment on the Freeway, [hereinafter, The Fourth Amendment on the
Freeway], 3 RUTGERS RACE & L. REV. 117, 151-57 (2001) (arguing that the Court
has yet to articulate a principled rule for deciding when a bright-line rule
controls a Fourth Amendment issue involving a traffic stop).
250
Maclin, The Fourth Amendment on the Freeway, supra note 249, at 157.
251 531 U.S. 326 (2001).
252
McArthur, 531 U.S. at 329.
253 Id. at 331.
254
Id. at 328.
255 Id. at 328-29.
256
Id. at 329.
257 Id.
258
Id.
259 Id. The officer in charge could not “recall whether he told [McArthur] to
come out of the trailer or if [McArthur] came out on his own.” People v.
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charge then told McArthur that he could not reenter his home
without a police escort.260 The second officer left the scene to
obtain a search warrant. 261 Two hours later, authorized by a
search warrant, the police searched McArthur's home and
found a small amount of marijuana and drug paraphernalia
under the sofa.262
McArthur was charged with two misdemeanor offenses. 263
The Illinois judiciary sustained his claim that the police
seizure of his home violated the Fourth Amendment, but
Justice Breyer's opinion reached a different conclusion.264
According to Justice Breyer, the central requirement of the
Fourth Amendment is “reasonableness.”265 He explained that
the Court interprets reasonableness “as establishing rules
and presumptions designed to control conduct of law
enforcement officers that may significantly intrude upon
privacy interests.”266 Sometimes reasonableness requires
warrants, but not always. Considering the totality of the
circumstances in McArthur, Justice Breyer would not say
“that the warrantless seizure was per se unreasonable.”267
Rather than announcing a bright-line rule, McArthur
“balance[d] the privacy-related and law enforcement related
concerns to determine if the intrusion was reasonable.”268
Under a balancing formula, Justice Breyer concluded that the
seizure was reasonable.269
Why does the Court adopt a bright-line rule in Kyllo, but
McArthur, 713 N.E.2d 93, 94 (Ill. App. 4 Dist. 1999), reversed, 531 U.S. 326
(2001). McArthur's presence inside his home was a critical factor in the lower
court's decision to sustain McArthur's Fourth Amendment claim. See McArthur,
713 N.E.2d at 98. For a discussion of why this point was critical to the
constitutional issue in McArthur, see Craig M. Bradley, Illinois v. McArthur:
Preserving Evidence Pending Search Warrants, T RIAL, J UNE 2001, at 70; Tracey
Maclin, Let Sleeping Dogs Lie: Why The Supreme Court Should Leave Fourth
Amendment History Unabridged, 82 B.U. L. REV. 895, 934-35 (2002).
260 McArthur, 531 U.S. at 329.
261
Id.
262
Id.
263 Id. McArthur was charged with unlawfully possessing drug paraphernalia
and marijuana (less than 2.5 grams).
264 Id. at 329-31.
265
Id. at 330.
266 Id. at 330.
267
Id. at 331. According to Justice Breyer, the facts involved “a plausible
claim” of exigent circumstances. He also noted that the seizure was tailored to
the police need, was limited in time and scope, and avoided “significant intrusion
into the home itself.” Id.
268
Id. (citing Delaware v. Prouse, 440 U.S. 648 (1979) and United States v.
Brignoni-Ponce, 442 U.S. 873 (1975) which were not “house” cases).
269
Id. For a critique of McArthur and an explanation why McArthur failed to
address the crucial issue confronting the Court, see Bradley, supra note 259, at
70 (arguing that “the issue here is not one of sealing unoccupied premises but of
seizing an occupied dwelling and ejecting the occupant”).
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prefer a balancing test in McArthur, even though both cases
concern the sanctity and security of a home? One might say
that because Kyllo involved the “threshold” issue of whet h e r a
search occurred, a per se rule is necessary to provide guidance
for police officers. If the challenged police conduct does not
involve a “search” within the meaning of the Fourth
Amendment, police officers need not worry about the
“reasonableness” of their actions. They are free to proceed
without obtaining a warrant, and they need not worry
whether they have probable cause or reasonable suspicion of
criminality to justify their intrusion. On the other hand, in
McArthur there was no question that a seizure had occurred.
Thus, the “threshold” issue of whether the police conduct
triggered Fourth Amendment scrutiny was not on the table.
The only question confronting the Court concerned the
“reasonableness” of the seizure. Reasonableness
generally—although not always—requires a consideration of
the totality of the circumstances.
If this explanation accurately describes the Court's
approach, then Kyllo and McArthur—rather than illustrate
the Court's unprincipled approach toward bright-line
rules—demonstrate a coherent theme. But the two most
recent cases involving whether a police intrusion constitutes
a search, Minnesota v. Carter270 and Bond v. United States,271
cast doubt on the validity of this explanation. An earlier
discussion noted the differences between Kyllo, which
adopted a bright-line rule, and Minn esota v. Carter, which
eschewed a per se rule for determining whether guests or
visitors will have an expectation of privacy in their host's
home. 272 Although both Carter and Kyllo involved the
threshold issue of whether a search occurred, the Court took
divergent paths to resolve this issue.273
Carter is not the only recent case where the Rehnquist
Court avoids bright-line rules for determining whether a
search has occurred. Bond v. United States,274 decided a year
before Kyllo, concerned whether an officer's squeeze of
luggage triggered Fourth Amendment protection.275 Steven
270
271
272
273
274
275
525 U.S. 83 (1998).
529 U.S. 334 (2000).
See supra notes 78-102 and accompanying text.
Compare Carter, 525 U.S. at 91 with Kyllo, 533 U.S. at 40.
529 U.S. 334 (2000).
Bond, 529 U.S. at 335.
107
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Dewayne Bond was a passenger on an interstate bus that was
stopped at a border patrol checkpoint in Texas. An
immigration officer squeezed Bond's canvas bag that was in
the overhead compartment. The officer felt a “brick-like”
object inside. A search of the bag revealed a “brick” of
methamphetamine. The issue before the Court was whether
the officer's squeeze constituted a search.276 Writing for a
seven Justice majority, Chief Justice Rehnquist ruled that the
squeeze was a search. First, the Chief Justice explained that
the officer's motive for touching the bag was irrelevant to the
constitutional issue.277 He then explained that while a bus
passenger may expect that others will handle his luggage, a
passenger “does not expect that other passengers or bus
employees will, as a matter of course, feel the bag in an
exploratory manner.”278 Because the officer's squeeze was
probing rather than the equivalent of what a passenger might
do to create more room in the overhead rack, the Chief
Justice held that a search occurred.279
In sum, Carter and Bond demonstrate that the Rehnquist
Court is not devoted to bright-line rules when determining
the scope of the Fourth Amendment. Notwithstanding
sensible arguments to the contrary,280 the Court established a
legal framework where the constitutional rights of house
guests and interstate travelers will depend on a balancing
process that will be initially conducted by police officers who
may be disinclined to respect the Fourth Amendment rights of
individuals. Unlike the per se rule announced in Kyllo, the
totality tests of Carter and Bond afford scant guidance to
officers interested in knowing whether their actions trigger
constitutional safeguards. In sum, the reasoning and results
in Kyllo, Carter and Bond illustrate that the Court has yet to
articulate a coherent rationale for deciding when a bright-line
rule will be used to resolve whether a police intrusion
constitutes a search under the Fourth Amendment.
276
Id. at 35-36.
See Id. at 338 n.2 (“[T]he issue is not his state of mind, but the objective
effect of his actions.”).
278 Id. at 338-39.
279
Id. at 339.
280 See Minnesota v. Carter, 525 U.S. 83, 106-09 (1998) (Ginsburg, J.,
dissenting) (explaining why social guests and visitors should be entitled to rely
on the privacy of their host's home). In Bond, Justice Breyer contended that the
reasoning in that case “will lead to a constitutional jurisprudence of `squeezes,'
thereby complicating further already complex Fourth Amendment law,
increasing the difficulty of deciding ordinary criminal matters, and hindering the
administrative guidance (with its potential for control of unreasonable police
practices) that a less complicated jurisprudence might provide.” Bond, 529 U.S.
at 342 (Breyer, J., dissenting).
277
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Even if one believes that threshold cases justify the use of
per se rules and cases resolving the “reasonableness” of a
challenged search or seizure should be resolved under a
balancing formula, this distinction does not account for the
methodology utilized in McArthur. As noted above, the Court
has afforded the home the most scrupulous protection under
the Fourth Amendment. 281 To promote the home's security,
the Court has essentially adopted a per se rule regarding
police intrusions into the home: “[T]he Fourth Amendment
has drawn a firm line at the entrance to the house. Absent
exigent circumstances, that threshold may not reasonably be
crossed without a warrant.”282 Granted, the police action in
McArthur did not involve a forcible search or entry into a
home, but it did breach the security McArthur enjoyed in his
home. McArthur was inside his home when the police
knocked and requested permission to search inside. When
McArthur denied permission, he was forcibly detained
outside his home while a search warrant was obtained.283 This
action certainly implicated the Fourth Amendment's explicit
guarantee of a right “to be secure” in one's home.284 Also, the
need for police action in McArthur was less urgent than the
justification rejected in Welsh v. Wisconsin,285 which held the
gravity of an offense is an important factor to consider when
deciding whether exigency exists to justify a warrantless
arrest inside a home.286
See notes 91-100 and accompany text.
Payton v. New York, 445 U.S. 573, 590 (1980); see also Kirk v. Louisiana,
122 S. Ct. 2458, 2459 (2002) (“police officers need either a warrant or probable
cause plus exigent circumstances in order to make a lawful entry into a home”).
283 Illinois v. McArthur, 531 U.S. 326, 329 (2001).
284
Although there was no forcible entry of his home, McArthur's right to
enjoy full possession of his home and right to be secure within his home was
disturbed by the police action. Cf. Clancy, supra note 238, at 541 (explaining that
“the essential attribute of the right to be secure is the ability of the individual to
exclude the government from intruding. Thus, . . . as to a seizure of property,
the individual may exercise the right to remain in possession . . . . This ability to
exclude is so essential to the exercise of the right to be secure that is proper to
say that it is the equivalent to the right—the right to be secure is the right to
exclude.”); Clancy, supra note 1, at 357 (same); Adler, supra note 242, at 1120
(asserting that “the Founders' ultimate desire was not that the government be
reasonable but rather that the people be secure in their persons, houses, papers,
and effects”).
285 466 U.S. 740 (1984).
286
Welsh, 466 U.S. at 753. The police arrested Welsh inside his home without
a warrant after they developed probable cause that Welsh had been driving
while intoxicated. The state argued that exigent circumstances justified the
arrest because evidence of Welsh's blood-alcohol level might have dissipated
while waiting for a warrant to be secured. Id. at 753. The Welsh Court,
281
282
109
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Concededly, reasonable minds can differ over whether th e
Court correctly resolved the issue at stake in McArthur.287 My
concern here is not whether the Court correctly decided the
merits in McArthur; instead, my focus is on the methodology
that the Court used to resolve the merits. Police intrusions
that affect the security and sanctity of the home have
traditionally been resolved by bright-line rules. 288 McArthur
bucks that trend, but its explanations for eschewing a brightline rule are hardly satisfying.289 On the other hand, Kyllo,
however, invalidated the arrest because the state classified the offense “as a
noncriminal, civil forfeiture offense for which no imprisonment was possible.” Id.
at 754 (citation omitted). In fact, Welsh moves close to announcing a per se rule
against warrantless entries for arrest in cases of minor crimes. See id. at 753
(“[W]e note that it is difficult to conceive of a warrantless home arrest that
would not be unreasonable under the Fourth Amendment when the underlying
offense is extremely minor.”); id. (“[A]pplication of the exigent-circumstances
exception in the context of a home entry should rarely be sanctioned when
there is probable cause to believe that only a minor offense, such as the kind at
issue in this case, has been committed.”).
In McArthur, Justice Breyer distinguishes Welsh on two grounds.
McArthur, 531 U.S. at 336. First, he states that McArthur was detained for a
“`jailable'” offense, whereas Welsh involved a “`nonjailable'” offense. Id. Second,
he notes that the seizure involved in McArthur “is considerably less intrusive”
than a police entry into a home to affect a warrantless arrest. Id. On the issue
of exigency, Justice Breyer states that the facts in McArthur involve “a plausible
claim” of exigent circumstances. Id. at 331.
287
Professor Bradley calls the issue at stake in McArthur a “festering issue:
When may police act to preserve evidence pending the arrival of a search
warrant when they fear that someone inside the building may destroy the
evidence?” Bradley, supra note 259, at 73.
288
Exceptions to this statement may be Maryland v. Buie, 494 U.S. 325 (1990)
and Richards v. Wisconsin, 520 U.S. 385 (1997). Buie held that the police may,
while effecting the arrest of a felon in his home pursuant to an arrest warrant,
conduct a protective sweep of a home when they have reasonable suspicion that
the premises harbor an individual posing a danger to the officers or others.
Buie, 494 U.S. at 337. Richards ruled that an unannounced entry into a home is
permissible where the police have reasonable suspicion that knocking and
announcing their presence and purpose would threaten officer safety or risk the
destruction of evidence. Richards, 520 U.S. at 395.
289 McArthur, 531 U.S. at 336. Justice Breyer explains that under the
circumstances, “we cannot say that the warrantless seizure was per se
unreasonable.” Id. at 331. He then proffers two reasons for this conclusion.
First, the facts involved “a plausible claim of specially pressing or urgent law
enforcement need, i.e., `exigent circumstances.'” Id. Second, he notes that the
seizure of McArthur “was tailored to that need, being limited in time and scope,
and avoiding significant intrusion into the home itself.” Id. Justice Breyer's first
justification for the seizure—“a plausible claim” of exigency—“is a concept
unknown in the Court's Fourth Amendment jurisprudence, and [he] made no
effort to explain it.” Maclin, supra note 259, at 935 n.182. Judges and police
officers will undoubtedly have trouble determining the difference between
exigent circumstances, which permits a warrantless entry of a home to effect an
arrest or search, see Minnesota v. Olson, 495 U.S. 91, 101 (1990), and “a
plausible claim” of exigency, which, after McArthur permits something less than
a full-blown seizure of a home, and an implausible claim of exigency, which
presumably would not have permitted the seizure upheld in McArthur. Justice
Breyer's second justification for upholding the seizure—it was “both limited and
tailored reasonably to secure law enforcement needs while protecting privacy
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decided four months after McArthur, utilizes a bright-line
rule to determine whether police conduct directed at a home
implicates the Fourth Amendment. 290
Kyllo's preference for drawing a firm and bright line at
the entrance to the house is equally applicable in McArthur:
Absent exigent circumstances, police officers should not be
allowed to disturb an individual's right “to be secure” in his
home without a warrant. Although both cases involve the
sanctity and security of a private home, the choice to employ a
per se rule in Kyllo and a balancing test in McArthur, is not
explained by the Court nor deciphered by examining the
Court's relevant precedents.
C. Kyllo's Emphasis on the Home
The third and final reason to question Kyllo's long-term
impact for protecting Fourth Amendment rights, ironically,
concerns Kyllo's strongest feature: its emphasis on the
home.291 The driving force of Justice Scalia's opinion was that
interests”—typifies the fact-specific balancing often seen in Justice Breyer's
search and seizure opinions. See, e.g., Bd. of Ed. v. Earls, 122 S. Ct. 2559, 256971 (2002) (Breyer, J., concurring) (listing factors that make drug testing
program valid); Wyoming v. Houghton 526 U.S. 295, 308 (1999) (Breyer, J.,
concurring) (distinguishing between searching a woman's purse found on the
backseat of a car, and searching a purse “attached to her person”); Minnesota v.
Carter, 525 U.S. 83, 103-05 (1998) (Breyer, J., concurring) (asserting that the
record did not support the factual conclusions of the lower court's determination
that an officer's conduct constituted a search). But this approach to Fourth
Amendment issues has its own problems, as Justice Breyer knows. See Bond v.
United States, 529 U.S. 334, 342 (2000) (Breyer, J., dissenting) (complaining that
the Court's ruling on whether an officer's squeeze of luggage constitutes a
search complicates “already complex Fourth Amendment law, [and] increas[es]
the difficulty of deciding ordinary criminal matters, and hinder[s] the
administrative guidance (with its potential for control of unreasonable police
practices) that a less complicated jurisprudence might provide”); see also, Wayne
R. LaFave, “Case-By-Case Adjudication” versus “Standardized Procedures”: The
Robinson Dilemma, 1974 SUP. CT. REV. 127, 141 (“A highly sophisticated set of
rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of
subtle nuances and hairline distinctions, may be the sort of heady stuff upon
which the facile minds of lawyers and judges eagerly feed, but they may be
`literally impossible of application by the officer in the field.'”) (footnote omitted).
290
Kyllo v. United States, 533 U.S. 27, 40 (2001).
291 In his article on Kyllo, Professor Seamon describes Kyllo as an important
case and also highlights the Court's emphasis on the home. See Richard H.
Seamon, Kyllo v. United States And the Partial Ascendance of Justice Scalia's
Fourth Amendment, 79 WASH. U.L.Q. 1013 (2001). According to Professor
Seamon, Kyllo is a significant ruling, in part, “because it reinforces the
narrowing of the once broad warrant presumption in two ways. First, by
departing from the reverse Katz test [the tendency by the Court to find that
government conduct is not a search for Fourth Amendment purposes], Kyllo
111
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a thermal imager discloses information regarding the interior
of a home.292 While Justice Scalia willingly conceded that the
challenged intrusion in Kyllo's case involved an insignificant
compromise of a homeowner's privacy, 293 that fact was
unimportant. The trivial nature of the intrusion was
irrelevant because—from the Founder's era to modern
times—private homes have been protected against
warrantless police searches. Thus, Scalia explained that the
Court “must take the long view, from the original meaning of
the Fourth Amendment forward.”294 This meant that a search
warrant was required before police could utilize a thermal
imager to determine the relative heat that was emanating
from Kyllo's home.295
To a certain extent, Kyllo's emphasis on the home is
understandable. There are textual, historical and practical
reasons why the Court's Fourth Amendment jurisprudence
has afforded the home special protection. Kyllo continues this
trend, notwithstanding the limited information that the
thermal imaging revealed. Practically speaking, however,
giving special protection to the home, but reduced or no
protection to other areas, may be short-sighted, particularly if
the Court is concerned about technological advances that
may block future resort to that test as a means of shoring up the illusion of a
broad warrant presumption. Second, Kyllo articulates the new, narrow version
of the presumption, under which the warrant requirement applies most
stringently to searches of the home.” Id. at 1029. Although Professor Seamon
generally applauds the result in Kyllo, a student commentator calls Kyllo “a
dangerous opinion” because Justice Scalia:
has crafted an opinion that moves the Court even further in reverse,
back toward a Fourth Amendment jurisprudence based on place. And
the only place that Justice Scalia appears to believe that warrants full
protection is the interior of the home. The test he develops for whether
government use of a technology constitutes a search offers little to no
protection to information generated by new technologies.
Andrew Riggs Dunlap, Fixing the Fourth Amendment with Trade Secret Law: A
Response to Kyllo v. United States, 90 GEO. L.J. 2175, 2176 (2002). According to
Dunlap, Kyllo's “reasoning should produce alarm” because it embraces “a view of
the Fourth Amendment that buckles and gives way once a citizen, or his or her
information, passes outside the home.” Id. at 2187, 2189-90. While I agree that in
future cases the Court is likely to read Kyllo's holding narrowly, there is noting
in Kyllo itself that demands this narrow interpretation.
292
Kyllo, 533 U.S. at 35 n.2 (“A thermal imager reveals the relative heat of
various rooms in the home. The dissent may not find that information
particularly private or important, but there is no basis for saying it is not
information regarding the interior of the home.”) (citations omitted).
293
Id. at 40.
294 Id.
295
Id.; see also David O. Markus & Mona Markus, The Heat is On: Thermal
Imaging and the Fourth Amendment, T HE CHAMPION Dec., 1998, at 22-24 (preKyllo article arguing that the use of thermal imaging requires a judicial
warrant).
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intrude upon privacy. As Justice Stevens suggested, if senseenhancing technology gives the government “the functional
equivalent of access to a private place,” then the reach of the
Fourth Amendment protective umbrella should not be
confined to the home.296 Although the facts in Kyllo did not
require the Court to discuss how its analysis might affect
other areas and places entitled to constitutional protection,
Kyllo's stress on the home may provide a distinguishing point
in future cases where the Court has to judge the use of
thermal imaging or similar sense-enhancing equipment
directed at targets other than houses. If the Court's past
precedents are predictive of future results, the odds are good
that Kyllo's protective reach will be confined to the home.
Indeed, the facts and holding of United States v.
Karo297—another case involving electronic
surveillance—reveals the limits of a judicial analysis focused
on the home and may provide the template for limiting Kyllo.
In Karo, federal drug agents learned that the defendants
had ordered several gallons of ether in order to extract
cocaine from clothing that had been imported into the
country. The agents placed an electronic beeper in a can of
ether that was sold to the defendants. 298 Over a four month
period, using both visual and electronic surveillance, the
agents tracked the beeper as it arrived and left several
private homes and two commercial storage facilities. Finally,
the agents obtained a search warrant for a private residence
where the beeper-laden can was located. Inside that home,
they found cocaine.299 Two issues confronted the Court: First,
whether installation and transfer of the beeper-laden can to a
buyer unaware of the beeper's presence triggered Fourth
Amendment protection.300 Second, whether monitoring of the
beeper was a search when it revealed information that could
not have been obtained through visual surveillance.301 On the
Kyllo, 533 U.S. at 48 (Stevens, J., dissenting) (citation omitted).
468 U.S. 705 (1984).
298 The agents received a warrant for the installation and transfer of the
beeper-laden can, but that warrant was later invalidated for misleading
statements in the affidavit. Karo, 468 U.S. at 719 n.5.
299
Id. at 708-10.
300 Id. at 712.
301
Id. at 714. On the first issue, Karo ruled that installation and transfer of
the beeper-laden can was neither a search nor seizure. Id. No search occurred
because the transfer of an unmonitored beeper “conveyed no information at all.
To be sure, it created a potential for an invasion of privacy, but we have never
held that potential, as opposed to actual, invasions of privacy constitute searches.
296
297
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second issue, Karo ruled that “monitoring of a beeper in a
private residence, a location not open to visual surveillance,
violates the Fourth Amendment rights of those who have a
justifiable interest in the privacy of the residence.”302
Seven Justices in Karo agreed that monitoring a beeper in
a private home constitutes a search.303 The Court was split,
however, over whether monitoring the beeper to determine
that it was located somewhere in a storage facility constituted
a search. Writing for the majority, Justice White explained
that no search occurred because the beeper disclosed only
that the can was “somewhere in the warehouse.”304 The
monitoring did not “identify the specific locker” which
contained the beeper-laden can.305 Nor did the monitoring
reveal anything about the “contents” of the locker the
defendants had rented.306 Justice Stevens, however, took issue
with this conclusion. He noted the agents were unaware of the
beeper's location after its initial entrance into a private home.
“From that moment on it was concealed from view.”307 The
. . .” Id. at 712. No seizure occurred either: “Although the can may have
contained an unknown and unwanted foreign object, it cannot be said that
anyone's possessory interest was interfered with in a meaningful way.” Id.
302
Id. at 714. The Court explained that beeper monitoring reveals “that a
particular article is actually located at a particular time” in a home. Id. at 715.
“Even if visual surveillance has revealed that the article to which the beeper is
attached has entered the house, the later monitoring not only verifies the
officers' observations but also established that the article remains on the
premises.” Id. at 715.
303
Id. at 721. Justice O'Connor, with Justice Rehnquist joining her, stated
that “the mere presence of electronic equipment inside a home, transmitting
information to governments agents outside, does not, in and of itself, infringe on
legitimate expectations of privacy of all who have an expectation of privacy in
the home itself.” Id. at 722 (O'Connor, J., concurring). She relied on White,
which permitted the use of information obtained from within a home by means
of a microphone secreted on a government agent. Id. In O'Connor's view, the
crucial question in Karo is the defendant's interest in the container in which the
beeper is placed. Id. at 724. “When a closed container is moved by permission
into a home, the homeowner and others with an expectation of privacy in the
home itself surrender any expectation of privacy they might otherwise retain in
the movements of the container-unless it is their container or under their
dominion or control.” Id. (footnote omitted). According to Justice O'Connor, the
beeper “transmitted information about the location, not the contents, of the
container . . . . By giving consent to another to move a closed container into and
out of the home the homeowner has effectively surrendered his privacy insofar
as the location of the container may be concerned, or so we should assume
absent evidence to the contrary. In other words, one who lacks dominion and
control over the object's location has no privacy interest invaded when that
information is disclosed.” Id. at 727.
304 Id. at 720.
305
Id.
306 Id. After the beeper monitoring revealed that the can was located in the
storage facility, the locker containing the beeper-laden can was “identified only
when agents traversing the public parts of the facility found that the smell of
ether was coming from a specific locker.” Id. at 720-21.
307 Karo, 468 U.S. at 735 (Stevens, J., dissenting).
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agents discovered the beeper's location in the storage facility
by electronic surveillance.308 “Without the beeper, the agents
would have never found the warehouse . . . .”309 Thus, Stevens
concluded that because the monitoring “enabled the agents to
learn the location of personal property otherwise concealed
from public view,” it was a search.310
The contrasting opinions of Justices White and Stevens
illustrate the limits of a judicial analysis that emphasizes the
home. According to the Karo majority, police may use
electronic beeper surveillance free of constitutional scrutiny
provided the monitoring discloses only “the general vicinity,
and not the precise private location, of the [beeper].”311
Justice White's judgment that “general vicinity” monitoring is
not a search might not bother an agoraphobe, but it is an odd
way to construe the Fourth Amendment, which protects other
places and effects beside houses. Justice White is
understandably concerned that “[i]ndiscriminate monitoring
of property that has been withdrawn from public view would
present far too serious a threat to privacy interests in the
home to escape entirely some sort of Fourth Amendment
oversight.”312 But does the exact same “[i]ndiscriminate
monitoring of property that has been withdrawn from public
view” not present a similar serious threat to privacy interests
when that surveillance reveals that property is located at a
commercial storage facility, college campus or hotel resort?
The fact that the indiscriminate monitoring did not identify
the specific locker containing the property is beside the point.
“The property was concealed from public view; its location
was a secret and hence by revealing its location the beeper
infringed an expectation of privacy.”313 Under Justice White's
view, police are free to install covert electronic tracking
devices on any item available for commercial purchase, for
example, a book, suitcase or rental car. If later monitoring
reveals that the property is located at a certain hotel resort or
on a particular college campus, no search occurs provided the
monitoring does not identify the specific room in which a
308
309
310
311
312
313
Id.
Id. at 735 n.11.
Id. at 734-35.
Fishman, supra note 160, at 342.
Karo, 468 U.S. at 716 (footnote omitted).
Id. at 735, n.11 (Stevens, J., dissenting).
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person is staying.314
It may be possible in future cases to distinguish the
thermal imaging directed at a home from thermal imaging
directed at an office or other business facility.315 Similarly, the
Court may treat thermal imaging or other scientific searches
of vehicles differently from the search in Kyllo.316 Automobiles
314
See Fishman, supra note 160, at 345. Professor Fishman recognizes that
under Karo's logic,
it would appear that so long as the monitoring does not disclose
conclusively which of two or more private locations (houses, hotel
rooms, lockers, automobile trunks, or whatever) contains the beepered
object, monitoring the beeper does not constitute a search. Such a rule
would significantly diminish the privacy-enhancing impact the Court's
holding in Karo that private location monitoring constitutes a search.
Fishman, supra note 160 at 345 (footnotes omitted). Interestingly, Professor
Fishman criticizes Justice Stevens' conclusion that a search occurred when the
agents in Karo utilized monitoring to determine that the beeper-laden can was
located somewhere in the storage facility. According to Professor Fishman, this
view “sweeps too broadly.” Fishman, supra note 160, at 342. Professor Fishman
explains:
Had the agents maintained visual surveillance of the first storage
facility, they could have observed the suspects transfer the ether from
the first to the second warehouse. Further, upon learning that the ether
had been removed from the first facility, the agents could have
interviewed personnel at every other storage facility in Albuquerque
until, with luck they found the warehouse in question. Alternatively, in
theory, an informer might have learned of the ether's new location and
reported it to the authorities. Any of these techniques would have
“enabled the agents to learn the location of property otherwise concealed
from public view,” yet none of them would have “infringed upon a
privacy interest protected by the Fourth Amendment.” Why should using
a beeper, to determine only the general vicinity to which the ether had
been moved, be regarded differently? Justice Stevens enunciates no
persuasive reason.
Fishman, supra note 160, at 342-43 (emphasis added). Professor Fishman's
criticism of Justice Stevens resembles the reasoning of Knotts. In Knotts, the
Court concluded that because officers “could have” observed the defendant as he
traveled across the highways of Minnesota and Wisconsin, the Fourth
Amendment does not bar the use of electronic surveillance equipment to allow
the police to do the same. United States v. Knotts, 460 U.S. 276, 285 (1983)
(emphasis added). The problem with both Knotts's reasoning and Professor
Fishman's analysis is that they each prove too much. As noted earlier, see notes
164-74 and accompanying text, one can always imagine methods in which police
are able to detect useful information.
315
In recent years, the Court has authorized warrantless and suspicionless
searches of business offices and other premises on the basis of grounds that
would not allow searches of homes. See, e.g., New York v. Burger, 482 U.S. 691
(1987) (upholding warrantless, suspicionless search of automobile junkyard
business on “special needs” theory); O'Connor v. Ortega, 480 U.S. 709 (1987)
(searching of government employee's office assessed under “special needs”
model; validity of the search “should be judged by the standard of
reasonableness under all the circumstances”); but cf. Marshall v. Barlow's Inc.,
436 U.S. 307 (1978) (invalidating warrantless search of business).
316 See, e.g., Dery, supra note 242, at 403. Professor Dery describes the many
uses of the Enclosed Space Detection System (ESDS).
The ESDS, or heartbeat detector, is a surveillance tool designed to
detect the presence of people `hiding in enclosed spaces of vehicles' by
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are entitled to a lesser degree of privacy than that given to
houses. Therefore, a thermal imaging “search” or similar
intrusion directed at a vehicle might not trigger Fourth
Amendment protection, even though the intrusion reveals
information “that would previously have been unknowable
without [a] physical intrusion.”317 By combining the Court's
judgment that vehicles are afforded diminished privacy
protection, Karo's conclusion that general vicinity monitoring
is not a search, and Kyllo's emphasis on the home, an
analytical framework emerges that permits the Court to find
that thermal imaging of targets other than houses does not
implicate the Fourth Amendment.
In sum, Kyllo is an important ruling that expands Fourth
Amendment protection. But Kyllo's impact on future cases
involving the Fourth Amendment and technology, beyond its
limited fact pattern, is uncertain. If Karo's reasoning on
general vicinity monitoring is followed in future cases, the
holding of Kyllo is unlikely to prevent government officers
from using sophisticated technology to monitor or reveal
information that is otherwise not exposed to public view.
IV. CARNIVORE MEETS KYLLO
As noted above, Kyllo's long-term impact on search and
seizure doctrine is uncertain. On the one hand, Kyllo may
provide significant protection against future technological
intrusions. In addition to reaffirming the principle that
Fourth Amendment protection does not require a physical
identifying the presence of a `human ballistocardiogram.' With each beat
of the human heart, a ballistocardiogram or a small mechanical shock
wave propagates through the body. This shock wave, in turn, causes the
entire vehicle holding the person to vibrate `at a frequency dissimilar
from any other source.'
Dery, supra note 21, at 653 (footnotes omitted).
317
Kyllo v. United States, 533 U.S. 27, 40 (2001). Karo's holding does not
resolve whether electronic detection of an item concealed inside a vehicle
constitutes a search. Professor LaFave explains that there is some “uncertainty”
about the scope of Karo's reach. L AF AVE, supra note 21, at 653. (noting that the
Court initially frames the issue in broad terms as to “whether the monitoring of
a beeper [is a search] when it reveals information that could not have been
obtained through visual surveillance,” but later in its opinion narrowly frames
the issue as to “whether the monitoring of a beeper in a private residence, a
location not open to visual surveillance” is a search) (emphasis added). According
to Professor LaFave, Karo could be read to mean that beeper surveillance that
reveals that a container is concealed inside a vehicle or other private location
still amounts to a search, even though the surveillance is not directed at a
private residence. L AF AVE, supra note 21, at 653.
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intrusion into the home—a rule often ignored in previou s
cases involving technological intrusions—Kyllo also rejected
the claim that disclosure of intimate details was necessary
before a government intrusion would be deemed a search.318
After Kyllo, all details regarding the interior of the home are
constitutionally protected “because the entire area is held
safe from prying governmental eyes.”319
On the other hand, Kyllo's protective impact may be
blunted in future cases. Kyllo's logic undercuts the holding in
Smith v. Maryland and suggests that a dog sniff of a home is a
search notwithstanding the contrary implication coming from
Place. In light of the tension between Kyllo and these cases
and because the Court is unlikely to overrule Smith or limit
the logic of Place to luggage and automobiles, Kyllo's holding
may be confined to thermal imaging intrusions. Moreover,
there is nothing in the Kyllo opinion that commits the Court
to using “bright line” rules in future cases involving
technological intrusions affecting the home. Finally, because
Kyllo emphasized the traditional protection afforded private
homes, it will be easy to distinguish Kyllo where technological
intrusions do not target houses. Logically, the rule announced
in Kyllo should “protect individuals from the overly intrusive
use of sense-enhancing equipment” in other areas entitled to
c o n s t i t u t i o n a l p r o t e c t i o n . 320 Yet, if the analysis of
Karo—which Kyllo cites approvingly—is followed in future
cases, Kyllo's holding will not cover sense-enhancing
equipment that reveals private information in protected areas
outside of houses.
A possible test of Kyllo's strength (or weakness) may come
soon. The Court has not addressed the constitutional status of
e-mail communications, and lower court rulings on the subject
are sparse. 321 Normally, the Court is reluctant to address an
issue that has not been percolating in the lower courts. 322
Kyllo, 533 U.S. at 38.
Id. at 37.
Id. at 48 (Stevens, J., dissenting).
321
See Peter J. Georgiton, The FBI's Carnivore: How Federal Agents May Be
Viewing Your Personal E-Mail and Why There Is Nothing You Can Do About
It, 62 OHIO ST. L.J. 1831, 1838 (2001) (noting that the Court has not determined
whether there is a “reasonable expectation of privacy in our personal home email accounts, and there is little case law directed to the issue as well”).
322 See SUP. CT. R. 10; ROBERT L. STERN ET AL., SUPREME COURT P RACTICE 228
n.18 (8th ed. 2002) (“In some cases the Justices may feel that the time is not
ripe for the Court to resolve a conflict, preferring to await further litigation that
might produce a consensus or a satisfactory majority view among the lower
courts.”); id. at 230 (quoting Gilliard v. Mississippi, 464 U.S. 867 (1983) (Marshall,
J., dissenting from denial of certiorari)) (addressing “`those of my Colleagues
who agree with me [on merits of issue] but believe that this Court should
318
319
320
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However, the constitutional questions surrounding Carnivore,
the Federal Bureau of Investigation's controversial Internet
surveillance program, may require the Court to address the
constitutional status of e-mail communications coming from a
home computer. If such a case arises, the Court may be
confronted with a conflict between Kyllo's holding and the
government's claim that certain applications of Carnivore do
not constitute searches under the Fourth Amendment. 323
The exact contours and capabilities of Carnivore are still
subject to debate.324 Briefly stated, Carnivore is a computerbased search program that allows the FBI to intercept
electronic communications that travel on the internet. 325
postpone consideration of the issue until more state supreme courts and federal
circuits have experimented with substantive and procedural solutions to the
problem'”).
323 See Fourth Amendment Issues Raised by the FBI's “Carnivore” Program:
Hearing Before the House Subcomm. on the Constitution, House Comm. on the
Judiciary, 106th Cong. (2000) [hereinafter House Hearing] (statement of Donald
M. Kerr, Assistant Director, Federal Bureau of Investigation) (“We do, in fact,
have legal authority to do what we are doing today, and I think it is because of
the correct belief, from my perspective, that the addressing information on the
Internet is, in fact, a useful and appropriate analog to the telephone number in
the switch circuit world.”); The `Carnivore' Controversy: Electronic Surveillance
and Privacy in the Digital Age: Hearing Before the Senate Comm. on the
Judiciary, 106th Cong. (2000) [hereinafter Senate Hearing] (statement of Kevin
DiGregory, Deputy Associate Attorney General Department of Justice) (“We
don't think that there should be a different standard for the interception of emails versus the interception of telephones—excuse me; I used the word
“interception”—for a pen register or a trap and trace for e-mails as opposed to a
pen register or trap and trace for telephones.”).
324
See Maricela Segura, Note, Is Carnivore Devouring Your Privacy?, 75 S.
CAL. L. REV. 231, 233 (2001) (noting that even “after independent review of
Carnivore, questions linger about the program's actual capabilities”).
325 For a comprehensive description of Carnivore, see ILLINOIS INSTITUTE OF
T ECHNOLOGY RESEARCH INSTITUTE , Independent Review of the Carnivore System,
Final Report (Dec. 8, 2000, at vii, available at http://www.usdoj.gov/jmd/
publications/carniv_final.pdf (“Carnivore is a soft-ware based tool used to
examine all Internet Protocol (IP) packets on an Ethernet and record only those
packets or packet segments that meet very specific parameters.”) [hereinafter
IITRI REPORT]; see also Ku, supra note 1, at 1355 (“Like an information
roadblock, [Carnivore] screens all traffic, but pulls over only the data packets it
has been programmed to capture.”); Trenton C. Haas, Note, Carnivore and the
Fourth Amendment, 34 CONN. L. REV. 261, 271 (2001) (“Carnivore is an Internet
surveillance system or diagnostic tool, which—when equipped with special
filtering software—gathers informational packets traveling over a network.”);
Neil King Jr. and Ted Bridis, FBI's Wiretaps To Scan E-Mail Spark Concern,
WALL ST. J., July 11, 2000, at A3 (describing Carnivore as “[e]ssentially a
personal computer stuffed with specialized software, Carnivore represents a new
twist in the federal government's fight to sustain its snooping powers in the
Internet Age. [Carnivore] can scan millions of e-mails in a second. . .”); Ted
Bridis and Neil King Jr., Carnivore E-Mail Tool Won't Eat Up Privacy, Says
FBI, WALL ST. J., July 20, 2000, at A28 (“The system belongs to a class of tools
119
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[Carnivore] enables the FBI to conduct a one-way tap into an
Ethernet stream—the flow of electronic impulses carrying
communications through an internet connection. This method
allows investigators to search out keywords, e-mail addresses
or internet protocol (“IP”) addresses—a series of numbers and
letters that correlate to websites. Carnivore can conduct at
least two types of searches. First, installed on an ISP's
[internet service provider] network, Carnivore can monitor and
record the full content of messages that a targeted user has
sent in real-time. This real-time, full-content search is
conducted under the same basic legal structure that is
employed for telephone wiretaps. Second, Carnivore is
reportedly able to acquire the address information for the
origin and the destination of all communications to and from a
particular ISP customer. This function provides the TO and
known as `packet filters' or `sniffers,' which look for parcels of data that travel
across a network and compromise an e-mail or a visit to a Web site. Using a
Windows screen, Carnivore also can be set to capture file downloads and chatroom conversations. It can grab e-mail from the most popular Web-based
companies, including Yahoo! Inc. and Microsoft Corp.'s Hotmail. And once it is
installed at an Internet service provider, the FBI can dial into Carnivore to
make changes and monitor data that have been collected.”). The IITRI's REPORT
on Carnivore, which was intended to address the complaints of civil libertarians
and computer privacy advocates, was criticized by another group of experts. See
Haas, supra note at 276 (explaining that “a five member team of renowned
researchers and academicians” selected by the chief scientist at the Justice
Department “harshly criticized the IITRI's review for what they considered
`continued' and `serious concerns relating to Carnivore's system.'”) (footnotes
omitted).
The following law review articles have assisted me in understanding how
Carnivore works, and have helped to identify the federal statutes that control
various applications of Carnivore to electronic communications. Anthony E. Orr,
Note, Marking Carnivore's Territory: Rethinking Pen Registers on the Internet,
8 MICH. T ELECOMM. & T ECH. L. REV. 219 (2002); Peter J. Georgiton, Note, The
FBI's Carnivore: How Federal Agents May Be Viewing Your Personal E-Mail
and Why There Is Nothing You Can Do About It, 62 OHIO STATE L. J. 1831
(2001); Trenton C. Haas, Carnivore and the Fourth Amendment, 34 CONN. L.
REV. 261 (2001); Manton M. Grier, Jr., The Software Formerly Known As
“Carnivore”: When Does E-Mail Surveillance Encroach Upon a Reasonable
Expectation of Privacy?, 52 S.C. L. REV. 875 (2001); Frank J. Eichenlaub,
Carnivore: Taking a Bite Out of the Fourth Amendment, 80 N.C. L. REV. 315
(2001); Maricela Segura, Note, Is Carnivore Devouring Your Privacy?, 75 S. CAL.
L. REV. 231 (2001); Thomas R. McCarthy, Don't Fear Carnivore: It Won't
Devour Individual Privacy, 66 MO. L. REV. 827 (2001); Peter J. Young, The Case
Against Carnivore: Preventing Law Enforcement from Devouring Privacy, 35
IND. L. REV. 303 (2001); Sandy D. Hellums, Bits and Bytes: The Carnivore
Initiative and the Search and Seizure of Electronic Mail, 10 WM . & MARY BILL
RTS. J. 827 (2001); Matthew Mickle Werdegar, Lost? The Government Knows
Where You Are: Cellular Telephone Call Location Technology and the
Expectation of Privacy, 10 STAN. L. & P OL'Y REV. 103 (1998); Raphael Winick,
Searches and Seizures of Computers and Computer Data, 8 HARV. J. L. & T ECH.
75 (1994) (pre-Carnivore article discussing the constitutional and statutory issues
surrounding stored and transmitted computer data). For a comprehensive and
insightful article on the interplay between Fourth Amendment protection and
various statutes designed to protect informational privacy, see Daniel J. Solove,
Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. CAL.
L. REV. 1803 (2002).
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FROM addresses on an e-mail and is viewed as the electronic
equivalent of a telephone pen-register or trap and trace
search.326
This final section will examine what impact Kyllo's holding
will have for the second type of intercept Carnivore
performs—its “pen mode”327 application. Specifically, has a
search under the Fourth Amendment occurred when the FBI
employs Carnivore to intercept and record the routing and
addressing information of e-mails sent from home computers?
A. Is E-mail Addressing Information
Comparable To Telephone Numbers?
Justice Department officials have told members of
Congress th at Smith v. Maryland authorizes federal agents to
use Carnivore's pen mode application without triggering
Fourth Amendment protections. 328 A c c o r d i n g t o t h i s
326
Segura, supra note 325, at 234 (footnotes omitted). A “trap and trace”
search occurs when an electronic device is installed to “capture[ ] the incoming
electronic or other impulses which identify the originating number” of an
instrument or device from which a wire or electronic communication was
transmitted. 18 U.S.C. § 3127(4) (1994). As another commentator has noted, the
FBI “describes Carnivore as something of a magic wand, which, when `waved'
over large volumes of e-mail, can be used to identify and separate targeted emails from non-targeted messages without violating the rights of those who use
e-mail for lawful purposes.” Eichenlaub, supra note 325, at 317.
327
Under the “pen mode” or pen register mode, Carnivore “can collect header
information such as the `TO:' and `FROM:' addresses from e-mails and the IP
addresses of computers in FTP [File Transfer Protocol] or HTTP [Hypertext
Transfer Protocol] transactions.” Orr, supra note 325, at 223 (footnote omitted);
see also, Georgiton, supra note 325, at 1842 (noting that “Carnivore can be set
to retrieve only information concerning where an outgoing e-mail was sent,
where an incoming e-mail was sent from, and the e-mail address itself”)
(footnote omitted); IIITRI REPORT, supra note 325 at ix (“In pen mode, the
operator can see the TO and FROM e-mail addresses and the IP addresses of
computers involved in File Transfer Protocol (FTP) and Hypertext Transfer
Protocol (HTTP) sessions.”).
328 See House Hearing, supra note 323 (statement of Kevin DiGregory,
Deputy Associate Attorney General Department of Justice) (responding to a
question from Representative Jerrold Nadler that this information could be
obtained without probable cause, DiGregory stated: “That's correct, and I want
to point out to you that the Supreme Court held in Maryland v. Smith, I believe
in 1979, that there was no reasonable expectation of privacy in numbers dialed
by a telephone because essentially, when someone turns over information to a
third part like the telephone company, they should not have either a subjective
or an objective reasonable expectation of privacy in that information”). In
responding to a question from Senator Leahy, which essentially asked if the use
of Carnivore crossed the lines established in Smith v. Maryland, Donald Kerr
responded:
[W]e believe that such URL information is essentially identical to a
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interpretation, federal agents “use Carnivore to conduct pen
register searches because they believe that the addresses
found in the TO and FROM lines of an e-mail are the
electronic equivalent of the numbers dialed on a telephone.”329
Under Smith's reasoning, a telephone pen register is not a
search because a pen register “do[es] not acquire the contents
of communications”330 and because a telephone user has no
reasonable expectation of privacy in the numbers dialed. By
using his telephone and voluntarily conveying numerical
information to the telephone company, a homeowner
“assume[s] the risk that the company would reveal to police
the numbers he dialed.”331
The Justice Department's view that Smith authorizes
application of Carnivore's pen mode without implicating
Fourth Amendment safeguards has not been fully tested in
the federal courts. 332 As one commentator has noted, “[n]o
court has taken the inferential step and applied the Smith
rule regarding the apprehension of telephone numbers to the
apprehension of e-mail addresses through electronic
surveillance.”333 But this same writer also acknowledged that
telephone number within a telephone networks that a criminal may dial.
Thus, it is worth noting that a Carnivore-based pen register would
provide the FBI with virtually the same information as a telephone pen
register would, i.e., the telephone number dialed by the criminal subject
reflecting that a communication to XYZ Corp. had occurred. No
“content” information (substance, purport or meaning) is gleaned from
either type of pen register as to the nature of the call.
Senate Hearing, supra note 323 (statement of Donald M. Kerr, Assistant Director,
Federal Bureau of Investigation).
329
Segura, supra note 325 at 262 (footnote omitted); see also Georgiton supra
note 325 at 1842 (“The FBI contends that, consistent with Smith, they can
retrieve [information concerning where an outgoing e-mail was sent, where an
incoming e-mail was sent from, and the e-mail address itself] without need for a
warrant.”) (footnote omitted).
330 Smith v. Maryland, 442 U.S. 735, 741 (1979).
331
Smith, 442 U.S. at 744.
332
See generally Haas, supra note 325, at 281-84 (summarizing federal
appellate court rulings finding that persons were not entitled to Fourth
Amendment protection when using internet systems privately maintained by
their employer or where the government seized messages found on a chat room
that was open to the public, and explaining that these rulings “are considerably
different from a situation involving the use of Carnivore by the FBI to intercept
Internet e-mail messages from one individual to another”). United States v.
Maxwell, 45 M.J. 406 (C.A.A.F. 1996), which one commentator described as
“[t]he leading case addressing the issue of privacy in personal e-mail accounts,”
see Georgiton, supra note 325, at 1839, did not consider the status of e-mail
addressing information.
333 Georgiton, supra note 325, at 1843. But cf., Haas, supra note 325, at 289
(describing an unreported and sealed ruling of a United States Magistrate which
“concluded that the FBI's proposed activities to intercept e-mail information was
the function equivalent of capturing telephone numbers with a pen register or
trap and trace device”) (footnote omitted).
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federal judges have not been eager to include e-mail
addressing information under the Fourth Amendment's
protective scope. Federal judges “while not explicitly
considering whether a person has a reasonable expectation of
privacy in the addressing information for their e-mail, have
been largely reluctant to consider anything beyond the
content of electronic communications in their K a t z
(reasonable expectation of privacy) analysis.”334
Although the lower federal courts have not yet endorsed
the Justice Department's position that application of
Carnivore's pen mode to e-mail messages sent by or to home
computers is authorized by Smith, academic commentators
have reached divergent conclusions on the constitutionality of
Carnivore's pen mode intercept. As an initial matter, several
writers have acknowledged the uncertainty of Smith as
applied to e-mail addressing information. For example, one
student commentator acknowledges that the “language of
Smith v. Maryland makes it difficult to conclude definitively
whether Internet users hold any reasonable expectation of
privacy in e-mail addressing information.”335 Nevertheless,
334
Georgiton, supra note 325, at 1843 (footnote omitted). Although reported
rulings on the constitutional status of e-mail addressing information have been
rare, federal courts have often rejected claims that e-mail users' subscriber
information is entitled to Fourth Amendment protection. Subscriber information
typically includes an internet user's name; billing address; home, work, and fax
numbers; and other billing information that is given to an internet service
provider. Several federal courts, relying on Smith, have ruled that this
information is not entitled to Fourth Amendment protection because individuals
have no legitimate privacy interest in the account/subscriber information given
to the ISP to establish an e-mail account. See, e.g., Guest v. Leis, 255 F. 3d 325,
336-37 (6th Cir. 2001); United States v. Hambrick, No. 99-4793, 2000 WL
1062039, at *11-12 (4th Cir. Aug. 3, 2000); United States v. Cox, 190 F. Supp. 2d
330, 333 (N.D. N.Y. 2002); United States v. Kennedy, 81 F. Supp. 2d 1103, 1110
(D. Kan. 2000).
335 Orr, supra note 325, at 226; see also Haas, supra note 325, at 290 (“At the
outset, this Comment sought to establish whether Carnivore violated the
Constitution's Fourth Amendment. Yet, after analyzing the issue, a yes or no
answer is simply not possible. The issue is far more complex.”); Segura, supra
note 325, at 258 (noting that “there remains a constitutional question as to
whether there is an expectation of privacy in e-mail, or whether it is a
transactional record in the hands of a third party”); Georgiton, supra note 325,
at 1842 (noting that Smith's holding “suggests that the FBI does not need a
warrant in order to get the addressing information from someone's e-mail
account”) (emphasis added). See also ROSEN, supra note 178 at 70-78. Professor
Rosen notes:
Personal e-mail poses something of a constitutional puzzle: on the one
hand, it sometimes originates from work, which is not a place that the
Fourth Amendment reserves for special constitutional protection; on the
other hand, it seems analytically similar to a private letter, which is one
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this writer concludes that e-mail users do not have a
constitutionally protected interest in e-mail addressing
information. E-mail users have no subjective expectation of
privacy because “they certainly know that addressing
information is being `conveyed' to their ISP, if for no other
reason than to route their messages to the proper
destination.”336 Moreover, because e-mail messages are
typically stored on an ISP's computer equipment both before
and after the recipient receives the message, users “know
ISP's possess `facilities for recording' e-mail addressing
information.”337 This writer also contends that no objective
expectation of privacy exists in e-mail addressing information
because the assumption of risk rule of Smith covers such
information. Just as a person assumes the risk that the phone
company will reveal to the police the numbers he dialed from
his home telephone, a computer user assumes a similar risk
by voluntarily conveying e-mail addressing information to an
internet service provider. “A Carnivore installation on the
ISP network simply facilitates this `revelation' by the ISP.”338
Other academic commentators have sought to distinguish
Smith by arguing that disclosure of e-mail addressing
information reveals more information than a telephone pen
register. Smith emphasized the “limited capabilities” of a pen
register, 339 which, unlike a wiretap, had no capacity to
disclose the content of a caller's communications. Carnivore's
pen mode, by contrast, can reveal more information than a
traditional pen register.
Carnivore can be set to gather lists of the individuals a
computer user has sent e-mail to and received e-mail from,
lists of the computers the user has transferred files with, and
lists of computers/web-servers accessed by the user in the
of the `papers' at the historical core of the Fourth Amendment.
Id. at 70.
336 Orr, supra note 325, at 227.
337
Orr, supra note 325, at 227, quoting Smith v. Maryland, 442 U.S. 735, 743
(1979).
338
Orr, supra note 325, at 229. Another commentator has analogized e-mail
addressing information to a traditional mail cover, which is not a search under
the Fourth Amendment. Megan Connor Berton, Home Is Where Your Modem Is:
An Appropriate Application of Search and Seizure Law to Electronic Mail, 34
AM . CRIM . L. REV. 163, 191-92 (1996) (“Just as senders of first class mail have
little expectation of privacy in the information written or displayed on the
outside of an envelope, e-mail users have little expectation of privacy in the
address portion of their communications. This information is needed to deliver
the message and, though often done solely by computer and without exposure to
a human eye other than the recipient's, it is understood that any problems with
the address causing difficulty in delivery may be noted by the system operator.”).
339 Smith, 442 U.S. at 742.
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course of surfing the Internet. These types of addressing
information reveal much more than a telephone number
does.340
Similarly, some legal commentators have also rejected the
argument that e-mail addressing information is not entitled to
constitutional protection because e-mail users knowingly
convey that information to a third party. They argue that
Smith's assumption of risk rule should not apply to electronic
communications because ISP employees sign employment
agreements promising not to read or disclose private e-mail,
and federal law does not authorize such disclosure.341 Under
this view, e-mail users “should have an [objective] expectation
of privacy in their electronic communication, even if saved on
a remote server.”342
Given the logic of Smith, the Court is unlikely to
recognize a constitutional difference between e-mail
addressing information and the information that a telephone
pen register reveals. Like a traditional pen register,
340 Georgiton, supra note 325, at 1845-46; see also Segura, supra note 325, at
252 (arguing that the rationale supporting Smith is inapplicable in the electronic
context “because e-mail addresses often do reveal the individuals involved in the
communication, whether the address is a derivation of the individual's name, or
the full name in parenthesis after the address”); Segura, supra note 325, at 262
(noting that “e-mail addresses often reveal the parties who are writing one
other, and there is usually no question about whether the message was
completed, as it is instantaneously sent to an internet mailbox”) (footnote
omitted); Chris J. Katopis, “Searching” Cyberspace: The Fourth Amendment and
Electronic Mail, 14 T EMP. ENVTL. L & T ECH. J. 175, 199 (1995) (arguing that
“where a pen register and trap and trace device only reveal a telephone
number, clearly much more information is obtained by analyzing the header of
e-mail. The header is a portion of the transmission that does contain content”);
cf., Orr, supra note 325, at 231 (conceding that “it appears e-mail addressing
information often does reveal more about the identity of the sender and receiver
than the ten simple digits of a telephone number,” but concluding “it is unclear
whether e-mail addresses really reveal that much more about the identity of
message senders and recipients”) (emphasis added); Skok, supra note 25, at 7579 (arguing that, although Web users reveal clickstream data to third parties,
Smith's assumption of risk theory should not apply to clickstream data because
the clickstream reveals “a record of a person's cyberspace activity, [which] allows
officers to entirely recreate an online experience”).
341
See Segura, supra note 325, at 253; cf., 1 L AF AVE, supra note 21, § 2.6 at
120 (noting arguments that “`computer operators have no legitimate purpose in
reading records unrelated to the operator's function, just as the telephone
company has no legitimate purpose in listening to the contents of conversations,'
and thus the user does have a legitimate expectation of privacy as to `the
contents of electronic mail messages or personal files.' This is so even when the
system manager makes backup copies of such records, and even when the users
are all employees of the system operator.”) (footnotes omitted).
342
Segura, supra note 325, at 253.
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Carnivore's pen mode does not disclose the content of e-mail
messages. 343 To be sure, Carnivore's pen mode “does reveal
more about the identity of the sender and receiver than the
ten simple digits of a telephone number.”344 But the revelation
of this additional information is probably not enough to
persuade the Court that Smith's reasoning should be
343
Carnivore's pen mode collects “not only the `To:' and `From:' fields of
targeted e-mail messages, but also the length of the message and the length of
individual fields within those message. In fact, the system captures the entire email message and all of its fields (including the `SUBJECT' line contents of the
message), but replaces each character in fields other than `To:' and `From:' with
an X.” Orr, supra note 325, at 230. Many writers have asserted that Carnivore's
pen mode reveals more information than a pen register, which thereby
distinguishes the analysis of Smith. See, e.g., Segura, supra note 325, at 262 (“As
a basic matter, e-mail addresses often reveal the parties who are writing one
other, and there is usually no question about whether the message was
completed, as it is instantaneously sent to an internet mailbox”) (footnote
omitted); Georgiton, supra note 325, at 1845-46 (same); Haas, supra note 325, at
288 (same). For example, Carnivore can reveal the length of an e-mail message,
which discloses more information than a pen register reveals. See, e.g., Orr,
supra note 325, at 230; Eichenlaub, supra note 325, at 330, n.105. This fact
probably will not matter to the Court. Disclosure of the length of an e-mail
message without revealing the contents of that message can be analogized to
FBI agents learning the length of a telephone conversation without learning
about the contents of the oral communications. If the pen register in Smith had
disclosed the length of the calls along with the numbers dialed, I doubt that this
additional information would have changed the result in that case. See Smith,
442 U.S. at 742 (noting that subscribers realize “the phone company has facilities
for making permanent records of the numbers they dial, for they see a list of
their long-distance (toll) calls on their monthly bills”). Most telephone bills also
provide the length of long distance calls. Therefore, the fact that Carnivore's pen
mode reveals the length of an e-mail message without disclosing its contents is
unlikely to affect the Court's determination of whether a search has occurred.
One commentator who argues that e-mail addressing information is not entitled
to constitutional protection, nevertheless disagrees with my assessment that
Carnivore's capability to record the length of an e-mail message will not affect
the Court's judgment on the constitutional status of e-mail addressing
information. See Orr, supra note 325, at 231-32. This commentator asserts that
the problem of overcollection “may be a fatal constitutional flaw” because, unlike
telephone numbers and e-mail addressing information, “the length of messages
and the length of individual fields within those messages is not regularly
collected for any legitimate business purpose.” Moreover, Carnivore's “collection
of the entire body of the message in “X” form” creates the potential for abuse
because “if the software can electronically `redact' a message, perhaps it could
also un-redact it, revealing the full contents.” Accordingly, this writer concludes
that Carnivore, as presently programmed, “should not be authorized for use as
an Internet pen register.” Orr, supra note 325, at 231-32.
While I agree that Carnivore's ability to capture the entire body of an e-mail
message creates the potential for abuse, that fact will not make a difference to
the Court. Long ago, the Court made clear technological devices that present a
risk for invasions of privacy do not, standing alone, trigger Fourth Amendment
protection. United States v. Karo, 468 U.S. 705, 712 (1984) (explaining that the
installation of an unmonitored beeper “created a potential for an invasion of
privacy, but we have never held that potential, as opposed to actual, invasions of
privacy constitute searches for purposes of the Fourth Amendment . . . . It is
the exploitation of technological advances that implicates the Fourth
Amendment, not their mere existence.”).
344 Orr, supra note 325, at 231.
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abandoned when deciding whether Carnivore's pen mode
intercept constitutes a search. Similar arguments were raised
in Smith to no avail. For example, Justice Stewart's dissent
noted that telephone numbers dialed from a private line “are
not without `content.'”345 A pen register discloses to
government officials “the identities of the persons and the
places called, and thus reveal the most intimate details of a
person's life.”346 In like manner, Justice Marshall's dissent
contended that giving police officials unfettered discretion to
employ pen registers jeopardized privacy, as well as First
Amendment, interests.
The prospect of unregulated governmental monitoring will
undoubtedly prove disturbing even to those with nothing illicit
to hide. Many individuals, including members of unpopular
political organizations or journalists with confidential sources,
may legitimately wi sh to avoid disclosure of personal contacts.
Permitting governmental access to telephone records on less
than probable cause may thus impede certain forms of political
affiliation and journalistic endeavor that are the hallmark of a
truly free society.347
These arguments did not convince the Smith majority that a
pen register invades a homeowner's privacy when he uses a
telephone,348 and there is no reason to think that similar
arguments will persuade the Court to discard Smith's
reasoning when determin ing Carnivore's pen mode intercept
constitutes a search.
Likewise, the Court is unlikely to abandon the
assumption of risk rule when it confronts the constitutional
status of e-mail addressing information. Smith concluded that
when a homeowner voluntarily conveyed numerical
information to a third party, he “assumed the risk” that the
third party would reveal that information to the government.
As one commentator has recognized, Smith's logic is equally
Smith, 442 U.S. at 748 (Stewart, J., dissenting).
Id.
347 Id. at 751 (Marshall, J., dissenting) (citations omitted); see also, David E.
Steinberg, Making Sense of Sense-Enhanced Searches, 74 MINN. L. REV. 563, 577
(1990) (“The pen register, however, cannot be limited to provide information
only about phone numbers that may relate to criminal activity. Police will learn
of all calls dialed by the suspect, and thus will discover if the suspect has talked
to the girl next door, the local Alcoholics Anonymous hotline, or the national
Communist Party headquarters.”).
348
See Werdegar, supra note 256, at 108 (1998)
345
346
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applicable to e-mail addressing information. 349 It will not
matter that ISP employees “must sign a confidentiality
agreement that they will not read [or disclose] customer
communications such as e-mail.”350 Telephone operators
presumably operated under similar restraints when Smith
was decided, and even if such restraints did not exist, the
employment policies and practices of telephone companies
were irrelevant to the result in Smith.351 What was relevant in
Smith, and will be relevant in a future case involving e-mail
addressing information, is the homeowner's voluntary
decision to convey information to a third party. Under the
assumption of risk theory, the disclosure of information to a
third party denies Fourth Amendment protection to what
might otherwise be private information.352
In sum, if the analysis of Smith determines the
constitutional status of e-mail addressing information, then
Carnivore's pen mode intercept will not be considered a
search under the Fourth Amendment. The two main features
that compelled the Court to find that a pen register was not a
search—the non-disclosure of the contents of communications
and the fact that the individual assumed the risk that private
349 Orr, supra note 325, at 229 (“Substituting the proper e-mail terms into
[Smith's] formula, it becomes clear that e-mail addressing information revealed
to no one other than an ISP's equipment nevertheless falls squarely within the
Miller assumption of risk doctrine, as interpreted in Smith.”); Ku, supra note 1,
at 1356 (“If Carnivore is programmed, for example, to capture the addresses of
people with whom an individual is corresponding via e-mail, the analogy to
Smith and the capturing of telephone numbers is even closer.”).
350
Segura, supra note 325, at 253.
351 In Smith, the defendant argued that he had an expectation of privacy in
the local calls he dialed because telephone companies typically do not record
local calls. The Court concluded that argument lacked any merit:
The fortuity of whether or not the phone company in fact elects to
make a quasi-permanent record of a particular number dialed does not,
in our view, make any constitutional difference. Regardless of the phone
company's election, petitioner voluntarily conveyed to it information that
it had facilities for recording and that it was free to record. In these
circumstances, petitioner assumed the risk that the information would
be divulged to police. Under petitioner's theory, Fourth Amendment
protection would exist, or not, depending on how the telephone company
chose to define local-dialing zones, and depending on how it chose to bill
its customers for local calls . . . . We are not inclined to make a crazy
quilt of the Fourth Amendment, especially in circumstances where (as
here) the pattern of protection would be dictated by billing practices of a
private corporation.
Smith, 442 U.S. at 745.
352
See Orr, supra note 325, at 229 (“When an Internet user sends a message
over an ISP's network, she has revealed the addressing information to the ISP's
equipment in the ordinary course of business, and she assumes the risk that the
ISP will reveal her addressing information to the government. A Carnivore
installation on the ISP network simply facilitates this `revelation' by the ISP.”)
(footnote omitted).
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information would be revealed to the government—apply
equally to e-mail addressing information. Thus, if Smith's
holding is the Court's “last word” on this issue, the Justice
Department correctly concludes that the FBI is free to use
Carnivore's pen mode intercept without triggering Fourth
Amendment scrutiny.
B. Does Kyllo's Holding Cover E-Mail
Addressing Information?
Smith's holding, however, is not the end of the line. The
rule established in Kyllo is pertinent to the constitutional
status of e-mail addressing information. Kyllo holds that a
search occurs when government actors acquire by “senseenhancing technology any information regarding the interior
of the home that could not otherwise have been obtained
without physical `intrusion into a constitutionally protected
area.'”353 If this standard is applied to Carnivore's pen mode,
then intercepting e-mail addressing constitutes a search.
Carnivore's pen mode enables the FBI to obtain by
technology information regarding the interior of the home
that could not otherwise be obtained without physical
intrusion into a home. A pen mode intercept allows FBI
agents to monitor information regarding the recipients and
senders of e-mail messages sent from or to a homeowner's
computer. This information would be unavailable to the
government unless FBI agents were inside th e home and had
access to a computer user's e-mail account. Moreover, it is
obvious that Carnivore is not a device generally available to
the public and that Carnivore's pen mode provides greater
detail about the inside of a home than a thermal imager,
which only reveals the relative amount of heat escaping from
a house. Finally, Carnivore cannot escape constitutional
scrutiny because e-mail addressing information is available
from a third party. Under Kyllo's analysis, Carnivore does not
become a non-search merely because the information acquired
by a pen mode intercept is obtainable from an internet service
provider.354
In sum, a straightforward application of Kyllo's holding
Kyllo v. United States, 533 U.S. 27, 34 (2001).
Kyllo, 533 U.S. at 35, n.2 (“The fact that equivalent information could
sometimes be obtained by other means does not make lawful the use of means
that violate the Fourth Amendment.”).
353
354
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demonstrates that a search occurs when the FBI employs
Carnivore to intercept and record the routing and addressing
information of e-mails sent from or to home computers. If the
Court is forced to address the constitutional status of e-mail
addressing information, at least two options will be available.
The Court can overrule Smith v. Maryland or confine Kyllo's
holding to thermal imaging. The likelihood that Smith will be
overruled seems remote, although Kyllo substantially
undermines Smith's legal foundation. As noted above, the
analytical framework that dictates the conclusion that
thermal imaging is a search also compels the judgment that a
pen register is a search.
On the other hand, limiting Kyllo to the narrow context of
thermal imaging and not applying its holding to Carnivore is
both unprincipled and perverse. A principled application of
Kyllo would extend to its holding to all places and contexts
entitled to Fourth Amendment protection. 355 Furthermore,
Fourth Amendment law would be bizarre if Kyllo did not
apply to Carnivore's pen mode. After all, the Kyllo majority
was concerned about interpretations of the Fourth
Amendment that would “leave the homeowner at the mercy of
advancing technology.”356 Even commentators who believe
that Carnivore can be re-programmed to comply with Fourth
Amendment safeguards, concede that Carniv ore, as currently
programmed, reveals more private information than
previously permitted under the Court's precedents. 357 I t
would be strange indeed for the Court to reject a “mechanical
interpretation of the Fourth Amendment” when considering
the constitutional status of a crude device that involves “no
`significant' compromise of [a] homeowner's privacy,”358 but
then put aside its concerns about “advancing technology” and
the privacy of the home when determining whether
Carnivore's pen mode constitutes a search.359
What will the Court do? I predict that the Court will
355
See id. at 48-49 (Stevens, J., dissenting).
Id. at 35-36.
See, e.g., Orr, supra note 325, at 231.
358 Kyllo, 533 U.S at 35 & 40.
359
The invasiveness of Carnivore's reach has been described elsewhere. See,
e.g., Bridis & King, supra note 325, at A3 (quoting a former prosecutor saying
that Carnivore is “the electronic equivalent of listening to everybody's phone
calls to see if it's the call you should be monitoring. You develop a tremendous
amount of information.”); Haas, supra note 325, at 271 (attributing to Richard
Forno the argument that “Carnivore is an electronic eavesdropping device”);
Segura, supra note 325, at 231-32 (noting Carnivore “can conduct a far-reaching,
general search of people who are not subject to a court order,” and that many
worry that “the Carnivore system will facilitate a `fishing expedition' in search of
any evidence of crime”).
356
357
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conclude that Carnivore's pen mode does not violate the
Fourth Amendment. The Court can achieve this result by
using one of two modes of analysis. Under the first approach,
as suggested, the Court will confine Kyllo to the context of
thermal imaging and apply the analytical framework of Smith
to conclude e-mail addressing information is not protected
under the Fourth Amendment. If the Court adopts this model,
Kyllo, like Katz, will become a “paper tiger” and will have
little impact on the government's authority to use technology
to gather information or monitor individuals' online
activity.360
Under the second approach, the Court can avoid the
tension between Kyllo and Smith by relying on its “special
needs” cases to find that Carnivore's pen mode does not
violate the Fourth Amendment. “Special needs” analysis is a
fancy way to describe the balancing test performed by the
Court in cases where the government lacks judicial authority
or probable cause to conduct searches and seizures. 361 Indeed,
360 See Skok, supra note 25, at 78-79, which argues that if Smith's analysis is
applied to clickstream data, then law enforcement officers will be able to know:
not only what sites [an individual] visited, but also for how long each
was visited, how often each site was re-visited, and which links were
followed from each site. A comparable level of knowledge in the
concrete world would require that the officers know not only which
books the suspect borrowed, but also when she read the books, how
long she spent reading each book and each page, and the sequence in
which she read each book and each page.
Skok, supra note 25, at 78-79.
361 At its inception, the “special needs” rule was intended as a narrow
exception to the warrant and probable cause requirements. “Only in those
exceptional circumstances in which special needs, beyond the normal need for
law enforcement, make the warrant and probable-cause requirement
impracticable, is a court entitled to substitute its balancing of interests for that
of the Framers.” New Jersey v. T.L.O. 469 U.S. 325, 351 (1985) (Blackmun, J.,
concurring). Although intended as a limited exception, the special needs cases
have expanded to the point where government actors are now permitted to
conduct suspicionless searches in various contexts (including scenarios that
involve criminal law enforcement) without establishing a compelling government
interest. See J OSHUA DRESSLER, UNDERSTANDING CRIMINAL P ROCEDURE 338-353
(3d ed. 2002). Professor Dressler explains that “when the Court determines that
`special needs' exist, it evaluates the government activity—the special need—by
[a] `reasonableness' balancing standard.” Id. at 339. Not surprisingly, “nearly
always, the government interest `trumps' the requirements of a warrant and/or
probable cause (or reasonable suspicion).” Id. (footnote omitted). On the
Constitution's 200th anniversary, Professor Kamisar explained why the “special”
needs doctrine undermines core Fourth Amendment values:
The handiness of the administrative search concept has gladdened the
hearts of many government lawyers. But it has alarmed other
observers, including me. Today, potential administrative searches are
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“special needs” analysis may be an enticing framework to
determine the constitutional status of e-mail addressing
information because the Court has already used this doctrine
to assess the constitutionality of drug testing programs in
various contexts. Urinalysis, of course, is another type of
technology that reveals information to the government that
would otherwise be unavailable without the use of intrusive
means by government officers.
Since 1989, the Court has decided six cases challenging
the constitutionality of drug testing policies. 362 In only two
cases, has the Court invalidated the urinalysis programs on
Fourth Amendment grounds. 363 The three main factors
considered by the Court in determining the validity of a drug
testing regime are the nature of the privacy interest, the
character of the intrusion, and the nature and immediacy of
the governmental interests. 364 Applying this framework, the
Court could decide that Carnivore's pen mode intercept
constitutes a search, but the intrusion is conducted in a
minimal manner and the government's need for e-mail
addressing information “is important—indeed, perhaps
buzzing around the Fourth Amendment like a swarm of bees. With drug
and AIDS testing, the drone may soon grow deafening . . . . However
great the threat posed by illicit drug use and the AIDS virus, the
`individualized suspicion' concept must remain the heart of the Fourth
Amendment. I believe we should greet claims of `national interest,'
`emergency' or `necessity' with considerable skepticism. Slogans like
these can be—and have been—a free people's most effective
tranquilizers. As we mark the Constitution's 200th anniversary, we
would do well to remember that.
Yale Kamisar, Drugs, AIDS and the Threat to Privacy, N.Y. T IMES, Sept. 13,
1987, § 6 (Magazine), at 109. For more recent academic commentary on the
“special needs” cases, see DRESSLER, supra note 361, at 338, n.1 (citing articles).
362
See Bd. of Ed. v. Earls, 122 S. Ct. 2559 (2002) (approving drug testing of
all students who participate in competitive extracurricular activities); Ferguson v.
Charleston, 532 U.S 67 (2001) (invalidating drug testing of maternity patients);
Chandler v. Miller, 520 U.S. 305 (1997) (invalidating urinalysis requirement for
candidates running for state office); Vernonia Sch. Dist. 47J v. Acton, 515 U.S.
646 (1995) (upholding random drug testing of public school students who
voluntarily participate athletic teams); Treasury Employees v. Von Raab, 489
U.S. 656 (1989) (upholding drug testing customs officers applying for positions
involving drug interdiction or requiring the carrying of a firearm or the handling
of classified documents); Skinner v. Ry. Labor Executives' Assn., 489 U.S. 602
(1989) (upholding drug and alcohol testing of railroad employees following major
train accidents).
363 See Ferguson, 532 U.S. at 81 (ruling unconstitutional drug testing program
of maternity patients suspected of drug use primarily because the main objective
of the testing was to gather evidence for law enforcement purposes); Chandler,
520 U.S. at 318 (invalidating statute requiring drug testing of candidates running
for state office because the state had not demonstrated a substantial problem of
drug abuse to justify a special need for suspicionless searches).
364 Earls, 122 S. Ct. at 2565-67; Acton, 515 U.S. at 654-664.
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compelling,”365 especially if the facts involve a terrorist or
national security threat. 366
Based on volume alone, the drug testing cases provide
considerable insight on the Justices' views about the
interaction between technology and the Fourth Amendment.
Therefore, lawyers and scholars may be better able to predict
365 Acton, 515 U.S. at 661. The drug testing cases illustrate how the Court
often finds that a challenged intrusion constitutes a search, but is nevertheless
constitutionally permissible because the privacy interests and character of the
intrusion are minimal. See, e.g., Earls, 122 S. Ct. at 2567 (explaining that
“[g]iven the minimally intrusive nature of the sample collection and the limited
uses to which the test results are put, we conclude that the invasion of students'
privacy is not significant”); Acton, 515 U.S. at 658 (noting that “the privacy
interests compromised by the process of obtaining the urine sample are in our
view negligible”); Skinner, 489 U.S. at 604 (concluding that drug and alcohol
testing procedures “pose only limited threats to the justifiable expectations of
privacy of covered employees”).
366 See, e.g., In re: Sealed Case No. 02-001, at 53-55, United States Foreign
Intelligence Surveillance Court of Review (Decided Nov. 18, 2002), available at
http://www.cadc.uscourts.gov/common/newsroom/02-001.pdf (relying on the
Court's “special needs” cases as support for different Fourth Amendment
requirements when the government's interest is to protect the nation against
terrorist threats as to opposed to ordinary crime control). In theory, the “special
needs” doctrine does not apply when the search promotes law enforcement
interests. For example, in Ferguson, the Court distinguished a city hospital's
drug testing of maternity patients from previously approved drug testing
programs. “In each of those earlier cases, the `special need' that was advanced
as a justification for the absence of a warrant or individualized suspicion was
one divorced from the State's general interest in law enforcement.” Ferguson,
532 U.S. at 79. Although “the ultimate goal of the program [in Ferguson] may
well have been to get the women in question into substance abuse treatment
and off of drugs, the immediate objective of the searches was to generate
evidence for law enforcement purposes in order to reach that goal.” Id. at 83-84
(footnotes omitted).
While the Court asserts that its “special needs” doctrine is inapplicable to
searches that promote law enforcement objectives, its precedents suggest that
this is not always the case. See New York v. Burger, 482 U.S. 691, 712-13 (1987)
(applying “special needs” analysis and upholding statute authorizing
administrative officers and police officers to conduct suspicionless searches of
owners of automobile junkyards); Burger, 482 U.S. at 716 (rejecting claim that
an “administrative scheme is unconstitutional simply because, in the course of
enforcing it, an inspecting officer may discover evidence of crimes, besides
violations of the scheme itself”); Griffin v. Wisconsin, 483 U.S. 868 (1987)
(applying “special needs” analysis and upholding warrantless search of a
probationer's home by a probation officer); cf. Ferguson, 532 U.S. at 100 (Scalia,
J., dissenting) (“[S]pecial-needs doctrine was developed, and is ordinarily
employed, precisely to enable searches by law enforcement officials who, of
course, ordinarily have a law enforcement objective”); RONALD J AY ALLEN ET AL.,
COMPREHENSIVE CRIMINAL P ROCEDURE 614 (2001) (explaining that New York v.
Burger “most clearly illustrates the degree to which the Court is willing to
recognize `special needs' in contexts where law enforcement interests are clearly
also present”); DRESSLER, supra note 360 (acknowledging the “considerable
tension between Ferguson and Griffin” on whether the presence of law
enforcement interests eliminates the applicability of the “special needs” doctrine).
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the Court's thinking on the “proper analytical structure that
should be employed to reconcile technological change with
Fourth Amendment rights”367 by focusing on the Court's
“special need” cases, rather than focusing on Kyllo.
CONCLUSION
The attacks of September 11 had an enormous impact on
Americans' attitudes about law enforcement. After those
attacks, President Bush and Congress enacted sweeping
legislation designed to protect the nation from future
terrorism. Much of that legislation expands the search and
seizure powers of government. No one should be lulled into
thinking that these expanded powers will be confined to
highly-trained FBI agents investigating international
terrorists. Once the judiciary approves additional search and
seizure powers for federal agents, state and local police
usually acquire similar authority in their fight against
ordinary crime. 368 Thus, the reaction of the federal judiciary to
the government's war on terrorism is likely to affect the
freedom of all Americans.
It may seem unimportant to the non-lawyer whether the
courts consider a particular police practice a “search” or not.
But this perception is dangerous to freedom. Yale Kamisar
rightly observes:
Freedom of speech, freedom of religion, and other freedoms,
have earned much praise, and deservedly so, but the Fourth
Amendment may plausibly be viewed as the centerpiece of a
free democratic society. All the other freedoms presuppose that
lawless police action have been restrained. What good is
freedom of speech or freedom of religion or any other freedom
if law enforcement officers have unfettered power to violate a
person's privacy and liberty when he sits in his home or drives
his car or walks the streets?369
Kyllo is a significant ruling on the scope of the Fourth
Amendment. Although Kyllo's impact on future cases remains
uncertain at this point, the choices available to the Court are
367
Brochure Announcing Symposium on April 12, 2002, The Effect of
Technology on Fourth Amendment Analysis and Individual Rights, National
Center for Justice and the Rule of Law, The University of Mississippi School of
Law.
368
See William J. Stunz, Local Policing After the Terror, 111 YALE L. J. 2137,
2140 (2002) (noting that “most constitutional limits on policing are
transsubstantive—they apply equally to suspected drug dealers and suspected
terrorists”) (footnote omitted).
369
Yale Kamisar, The Fourth Amendment And Its Exclusionary Rule, T HE
CHAMPION Aug, 1991, at 2.
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not difficult to imagine. The Court could interpret Kyllo's
holding as limited to a privilege against thermal imaging
directed at a home. On the other hand, the Court may
recognize that Kyllo's logic extends to other contexts like email addressing information. If the Court chooses the former
interpretation, the constitutional freedoms of all Americans
will be diminished.
135